CORNELL LAW LIBRARY QJnrn^U ^Jam ^rliaol ^jtbrarji KF ISB.a'iT" ""'""'"y Library DICTIONARY OP TERMS AND PHRASES USED IN AMERICAN OR ENGLISH JURISPRUDENCE. BY BENJ. VAUGHAN ABBOTT. Vol. I. A— K. BOSTON: LITTLE, BKOWlSr, AND COMPANY. 1879. t Entered according to Act of Congress, in the year 1878, by BENJ. VAUGHAN ABBOTT, In the Office of the Librarian of Congress, at Washington. University Press : John Wilson & Son, Cambridge, TO ELBRIDGE T. GEREY, OF THE NEW YORK BAR, THIS WORK IS INSCRIBED IN APPRECIATION OF HIS EXTENSIVE AND VARIED ATTAINMENTS IN THE KNOWLEDGE OP JUKISPKUDENOE, AND AS A TOKEN OF BEOABD INSPIRED ET A rKIENDSHIP OP MANY TEARS. 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/cu31924022836583 PREFACE. This work is strictly a Law Dictionary, rather than what may be called a Dictionary of the Law. It deals with the meanings of Law Terms. It has in view the wants of students and readers in topics new to them, who require an explanation of expressions which they meet for the first time; of prac- titioners, who find in instruments brought before them for con- struction words employed in unusual senses or connections, and desire to know all the shades and limits of their meaning ; of compilers and draughtsmen, who are concerned to choose precisely the right phraseology to express a definite legal idea. Being devoted to these wants, it is not occupied with essays upon the substantial rules of the law. When the technical meaning of a word or phrase has been fairly given, with suffi- cient illustrations of its application and use to enable the reader to determine what it may mean, or how he should employ it, the duty undertaken has been deemed fulfilled. Every reader of the Reports knows that there are numerous decisions which expound the judicial view of the meaning of some term involved. They are of great value in legal lexi- cography, but have never been systematically collected, or even indexed. The great foundation of this dictionary is in these decisions. The leading American Reports, to the extent of at least half, have been patiently examined, page by page, by the author, or assistants working in company with him, for cases of this character. Other Reports, including the notable English ones, have been examined, as thoroughly as practicable, by aid of all ready guides to their contents. The judicial definitions thus collected have formed the basis of the present work. There have been added a liberal selection of extracts from \1 PEEFACB. kindred works ; thus making the volumes in a good degree a digest of the modern English law dictionaries. Extracts accredi- ted to a writer by his name only are from his dictionary ; thus, references to Botjvibr, BtTBEiLL, or Whaeton, not naming book and page, are to the dictionary of the writer named, not to Bouvi- er's Institutes, Burrill on Assignments, or Wharton's Principles of ConTeyancing. The privilege of making extracts from the chapter of definitions in Abbott's New York Digest (which has been continued and enlarged in a new edition and supplements by Mr. Austin Abbott), has materially aided completeness, and ought to be specially acknowledged here, because the def- initions are cited from the reports themselves rather than from the Digest. Like aid has been derived from the United States Digest. The difference in the type employed at different parts of the page needs explanation. The matter in large type (bourgeois leaded) is what has been compiled for this work. Not always strictly original (for, especially in respect to English subjects, portions of an approved account are sometimes adopted from another work, as more likely to be useful than what could be vmtten anew), it expresses the author's views, for the sound- ness of which he is responsible. The matter in small type (brevier solid) consists of extracts from writings and decisions presenting additional, sometimes inconsistent views ; for these, the author only assumes the duty of correct condensation. The large type is in the nature of a treatise text ; the small type is rather a digest of the decisions. Small type is used not as a means of saving space upon paragraphs of minor im- portance, but to distinguish the extracts, or the Digest portion of the work. BENJ. VAUGHAN ABBOTT. Nbw Yobe, June, 1879. A TABLE OF ABBREVIATIONS USED IN JURISPRUDENCE. A Anonymous. In a reference, when annexed to the number of a leaf of a volume of which the leaves instead of the pages are numbered, " a " denotes the front of the leaf ; " b," the back of the leaf. A. B Anonymous Reports at end of Benloe's Reports, usually called New Benloe. A. C Appeal Court, English Chancery. A. D Anno Domini ; in the year of the Lord. A. K. Marsh A. K. Marshall's Reports, Kentucky Court of Appeals. A "p R A T, *■ Twcc ( Ashurst's Paper Books; the manuscript paper books of Ash- LI L ] ^^^^' ''•• BuUer, J., Lawrence, J., and Dampier, J., in Lincoln's ■ ( Inn Library. A. R Anno regni; in the year of the reign. A. & E Adolphus & Ellis' Reports, English King's Bench. Ab. Sh Abbott on Shipping. Abb. Adm Abbott's Admiralty Reports, United States District Court. Abb. App. Dec, Abb. "j Ct. of App., or Abb. > Abbott's New York Court of Appeals Decisions. N. Y. Ct. of App. ) Abb. N. Y. Dig. . . . Abbott's Digest of New York Reports and Statutes. p ' ■ ■ ■ ' ( Abbott's Practice Reports, various New York Courts. Abb. N. Y. Pr. u. s. or ( Abbott's Practice Reports, New Series, various New York Abb. Pr. N. B. . . .5 courts. Abb. Nat. Dig. . . . Abbott's National Digest. Abb. New Caa. . . . Abbott's New Cases, various New York Courts. Abb. U. S Abbott's United States Reports, United States Circuit and Dis- trict Courts. Abb. U. S. Pr. . . . Abbott's United States Courts Practice. Abr. Cas. Eq. . . . Equity Cases Abridged. Ace Accordant. Used in the reports, to denote the accordance or agreement between one adjudged case and another, in estab- lishing or confirming the same doctrine, in the same way as the disagreement or opposition of cases is denoted by contra. Act. or Act. Pr. C. . . Acton's Prize Causes, English Privy Council. Act. Reg Acta Regia. Ad. Con Addison on Contracts. Ad. E Adaips on Ejectment. Ad fin Ad'Jinem ; sit the end. Ad. Torts Addison on Torts. Ad. & E Adolphus & EUis' Reports, English King's Bench. Adams (Me.) .... Adams' Reports, Maine Supreme Court; Maine Reports, vols. 41, 42. Adams (N.H.) . . . Adams' Reports, New Hampshire Supreme Court ; New Hamp- shire Reports, vol. 1. ~,. Add. or Add. (Pa.) . . Addison's Reports, Pennsylvania County Court and Court of Errors. Add. Con Addison on Contracts. Add. Eccl Addams' Ecclesiastical Reports. Add. Torts .... Addison on Torts. Adm Admiralty. Admr Administrator. viii TABLE OF ABBKEVIATIONS Admx Administratrix. Adolpli. & E; . . . . Adolphus & Ellis' Reports, English King's Bench. Ads Ad sectam ; at the suit of. Aik Aikens' Reports, Vermont Supreme Court. Al Aleyn's Select Cases, English King's Bench. Al. & Nap Alcock & Napier's Reports, Irish King's Bench and Exchequer. Ala Alabama. Alabama Reports, Supreme Court. Ala. N. s Alabama Reports, Supreme Court. Ala. Sel. Cas. . . . Alabama Select Cases. Alb. Law Jour. . . . Albany Law Journal. Ale. Reg. Cas. . . . Alcock's Registry Cases, Irish. Ale. & N Alco(!k & Napier's Reports, Irish King's Bench and Exchequer. Aid. . Alden's Condensed Reports, Pennsylvania. Alison Prao Alison's Practice of the Criminal Law of Scotland. Alison Prino Alison's Principles of the Criminal Law of Scotland. All. or Allen .... Allen's Reports, Massachusetts Supreme Court ; Massachusetts Reports, toIs. 8a-96. "^^'fir's')^'' °^ ■*^"®"[ Allen's Reports, New Brunswick Supreme Court. Am. Corp. Cas. . . . Withrow's American Corporation Cases. Am. Jur American Jurist. Am. Law Jour. . . . American Law Journal. Am. Law Mag. . . . American Law Magazine. Am. Law Reg. . . . American Law Register. Am. Law Rev. . . . American Law Review. Am. Law T. R. . . . American Law Times Reports. Am. Lead. Cas. . . . Hare & Wallace's American Leading Cases. Am. R American Reports. Am. Railw. Cas. . . . American Railway Cases. Am. Railw. R. . . . American Railway Reports. Am. Tr. Cas Cox's American Trademark Cases. Amb Ambler's Reports, English Court of Chancery. Ames Ames' Reports, Rhode Island Supreme Court; Rhode Island Reports, vols. 4-7. Ames, K. & B. . . . Ames, Knowles, & Bradley's Reports, Rhode Island Supreme Court ; Rhode Island Reports, vol. 8. Amos & E. Fix. . . . Amos & Ferard on Fixtures. An Anonymous. , And Anderson's Reports, English Common Pleas and Court of Wards. Andr Andrew's Reports, English King's Bench. Ang Angell's Reports, Rhode Island Supreme Court ; Rhode Island Reports, vol. 1. Ang. Carr Angell on Carriers. Ang. Lim Angell on Limitations. Ang. Watero Angell on Watercourses. Ang. & A. Corp. . . Angell & Ames on Corporations. Ann. or Anne . . . Queen Anne ; thus 1 Ann. denotes the first year of the reign of Queen Anne. Annaly Annaly's Reports, English King's Bench ; Cases tempore Hard- wicke. Anon Anonymous. Anst Anstruther's Reports, English Exchequer. Anth. or Anth. N. P. . Anthon's Nisi Prius Reports, various New York Courts. App Appleton's Reports, Maine Supreme Court; Maine Reports, vols. 19, 20. Apud In ; contained in ; quoted in. Arch. Civ. PI. ... Archbold on Civil Pleading. Arch. Cr. PI Archbold on Criminal Pleading and Evidence. Arch. Land. & T. . . Archbold on Landlord and Tenant. Arch. N. P Archbold's Nisi Prius Law. Arch. Pr Archbold on Practice. Archer Archer's Reports, Florida Supreme Court; Florida Reports, , vol. 2. Arg Aryuenrfo; in arguing; in the course of reasoning. Ark Arkansas. Arkansas Reports, Supreme Court. Arkl Arkley's Reports, Scotch Justiciary Court. Arms. M. & 0. . . . Armstrong, Macartney & Ogle's Reports, Irish Nisi Prius Cases. Am Arnold's Reports, English Common Pleas. Am. Ins Arnould on Insurance. USED m JURISPRUDENCE. ix Arn. & H Arnold & Hodges' Reports, English Queen's Bench. Arn. & H. B. C. . . . Arnold & Hodges' Reports, English Bail Court. Ashm Ashmead's Reports, various Pennsylvania Courts. Ass Book of Assizes ; part 6 of the Year Books. Ass. de Jerns. . . . Assizes of Jerusalem. Ast Aston's Entries. Atherl. Mar. Sett. . . Atherly on Marriage Settlements. Atk Atkyn's Reports, English Chancery. Atty Attorney. Atty.-Gen Attorney-General. Aust. Juris Austin on Jurisprudence. Ayl. Pan Ayliffe's Pandects. Ayl. Par Ayliffe's Parergon Juris Canonici Anglicani. Azuni Mar. Law . . Azuni on Maritime Law. B Baneus ; the Common Bench. Book. The back of a leaf ; com- pare A. B. C Bail Court. Bell's Commentaries on Law of Scotland. B. C. Lowndes & Maxwell's Bail Court Cases, English Bail Court. B. C. R Saunders & Cole's Bail Court Reports, English Bail Court. B. Ecc. Law .... Bum on Ecclesiastical Law. B. Just Burn's Justice of the Peace. B. Monr B. Monroe's Reports, Kentucky Court of Appeals. B. N. C Brooke's New Cases, English King's Bench. B. N. P Buller on the Law of Nisi Prius. B. P. B Bullet's Paper Book. Compare A. P. B. B. R Baneus Kegis ; the King's Bench. B. R. H Cases tempore Hardwicke, English King's Bench. B. & A. or B. & Aid. . Barnewall & Alderson's Reports, English King's Bencli. B. & Ad Barnewall & Adolphus' Reports, English King's Bench. B. & B Broderip & Bingham's Reports, English Common Pleas. B. & C Barnewall & Cresswell's Reports, English King's Bench. B. & L Browning and Lushington's Reports, English Admiralty Court. B. & P Bosanquet & Puller's Reports, English Common Pleas. B. & S Best & Smith's Reports, English Queen's Bench. Bab. Auct Babington on Auctions. Bac. Abr Bacon's Abridgment. Bac. Max. ..''... Bacon's Maxims. Bagl. or Bagl. & H. . Bagley & Harraan's Reports, California Supreme Court ; Cali- fornia Reports, vols. 16-19. Bail Ct. Cas Lowndes & Maxwell's Bail Court Cases, English Bail Court. Bailey Bailey's Law Reports, South Carolina Court of Appeals. Bailey Eq Bailey's Equity Reports, South Carolina Court of Appeals. Baldw Baldwin's Reports, United States Circuit Court. Balf Balfour's Practice of the Law of Scotland. Ball & B Ball & Beatty's Reports, Irish Chancery. Bank. Inst Bankton's Institutes of the Law of Scotland. Bank. Mag Banker's Magazine. Bankr. Beg National Bankruptcy Register. Banks Banks' Reports, Kansas Supreme Court; Kansas Reports, vols. 1-5. Barb Barbour's Reports, New York Supreme Court. Barb. Ch Ba,rbour's Chancery Reports, New York Court of Chancery. Barb. Ch. Pr. . . . Barbour's Chancery Practice. Barber or Barb. (Ark.) Barber's Reports, Arkansas Supreme Court; Arkansas Reports, vols. 14^26. Barn Bamardiston's Reports, English King's Bench. Barn. Ch Bamardiston's Chancery Reports, English Chancery. Barn^& A. or Barn. & 1 garnewaU & Alderson's Reports, English King's Bench. Bam. & Ad BarnewaU & Adolphus' Reports, Er^lish King's Bench. ^ Barn. & C Barnewall & Cresswell's Reports, English King's Bench, r Barnes Barnes' Notes of Cases, English Common Pleas. / Barr Barr's Reports, Pennsylvania Supreme Court; PennsyFrania State Reports, vols. 1-10. Barr. Ob. Stat. . . . Barrington's Observations on Statutes.^ Barr. & Am Barron & Arnold's Election Cases. Barr. & Aus Barron & Austin's Election Cases. Batty Batty 's Reports, Irish King's Bench. Bay Bay's Reports, South Carolina Supremi to^rt. es^^^ eme COTjrt X TABLE OF ABBREVIATIONS Bay (Mo.) Bay's Beports. Missouri Supreme Court; Missouri Reports, vols. 1-3, 5-8. Bayl. Bills .... Bayley on Bills and Notes. Beas Beasley's Eeports, New Jersey Chancery. Beat Beatty's Reports, Irish Chancery. Beay Bearans Reports, English Rolls Court. Beaw Beawes' Lex Mercatoria. Becc Beccaria on Crimes and Punishments. Becls Med. Jur. . . . Beck on Medical Jurisprudence. Bee or Bee Adm. . . Bee's Admiralty Reports, United States District Court. Bel Bellewe's Cases, English King's Bench. Bell Ap. Cas Bell's House of Lords Cases, Scotch Appeals. Bell C Bell's Cases, Scotch Court of Session. Bell Com Bell's Commentaries on the Law of Scotland. Bell Cr. Cas Bell's Crown Cases. Bell Diet Bell's Dictionary of the Law of Scotland. Bell H. L Bell's House of Lords Cases, Scotch Appeals. Bell lUus Bell's Illustrations of Principles. Bell Prin Bell's Principles of the Law of Scotland. Bell Styles .... Bell's System of the Forms of Deeds. Belt Sup. Ves. . . . Belt's Supplement to Vesey's Eeports. Ben Benedict's Reports, United States District Court. Ben. Adm. Pr. . . . Benedict on Admiralty Practice. Ben. Monr. . . . B. Monroe's Reports, Kentucky Court of Appeals. Benl. or Bendl. . . . Benloe's Eeports, English King's Bench. Benl. & D Benloe & Dalison's Reports, English Common Pleas. Benn. (Cal.) .... Bennett's Eeports, California Supreme Court; California Ee- ports, vol. 1. Benn. Eire Ins. Cas. . Bennett's Eire Insurance Cases. Benn. (Mo.) .... Bennett's Reports, Missouri Supreme Court ; Missouri Reports, vols. 16-21. Benn. & H. Cr. Cas. . Bennett & Heard's Criminal Cases. Benn. & H. Dig. . . ^ Bennett & Heard's Massachusetts Digest. Benth. Jud. Ev. . . . Bentham on Rationale of Judicial Evidence. Benth. Leg Bentham on Theory of Legislation. Bert Berton's Reports, New Brunswick Supreme Court. Best Ev Best on Evidence. Best Pres Best on Presumptions. Best & S Best & Smith's Reports, English Queen's Bench. Bibb Bibb's Reports, Kentucky Court of Appeals. Big. L. & A. Ins. Cas. . Bigelow's Life and Accident Insurance Cases. Bing Bingham's Reports, English Common Pleas. Bing. N. C Bingham's New Cases, English Common Pleas. Binn Binney's Reports, Pennsylvania Supreme Court. Bish. Cr. Law . . . Bishop on Criminal Law. Bish. Cr. Pro. . . . Bishop on Criminal Procedure. Bish. Mar. & D. . . . Bishop on Marriage and Divorce. Bisp. Pr. Eq Bispham on Principles of Equity. Biss Bissell's Eeports, United States Circuit Court. Biss. Part Bisset on Partnership. Bl. Com Blackstone's Commentaries. Bl. D. & Blackham, Dundas, & Osborne's Eeports, Irish Nisi Prius Cases. Bl. R William Blackstone's Eeports, English Common Law Courts. Black Black's Eeports, United States Supreme Court. Black (Ind.) .... Black's Eeports, Indiana Supreme Court : Indiana Reports, vols. 30-55. " Blackf. (Ind.) .... Blackford's Eeports, Indiana Supreme Court. Blacks. Com Blackstone's Commentaries. Blacks. E William Blackstone's Reports, English Common La-i» Courts. Blake Blake's Eeports, Montana Territorial Courts. Bland Bland's Reports, Maryland Chancery. Blatchf. Blatcliford's Reports, United States Circuit Court. Blatchf. Pr. Cas. . . Blatcliford's Prize Cases, United States District Court. Blatchf. & H Blatchford & Howland's Admiralty Reports, United States Dis- trict Court. Bleck Bleckley's Eeports, Georgia Supreme Court ; Georgia Eeports, vols. 34, 35. Bli. or Bligh .... Bligh's Reports, English House of Lords. Bli. N. 8. or Bligh N.s. . Bligh's Reports, New Series, English House of Lords. Bloomf. Cas Bloomfield's Negro Cases, New Jersey Courts. USED m JURISPRUDENCE. xi Bond Bond's Eeports, United States Circuit Court. Boor Booraem's Reports, California Supreme Court; California Re- ports, vols. 6-8. Booth Seal Ac. . . . Booth on Real Actions. Bos. & P Bosanquet & Puller's Eeports, English Common Fleas. Bos. & P. N. R. . . . Bosanquet & Puller's New Eeports, English Common Pleas. Bost. Law Rep. . . . Boston Law Reporter. Bosw Bosworth's Reports, New York City Superior Court. Bott Bott on Poor Laws. Bout. Diet, or Bouvier Bouvier's Law Dictionary. Bout. Inst Bouvier's Institutes of American Law. Br. Ahr Brooke's Abridgment. Br. Brev. Jud. . . . Brownlow's Brevia Judicialia. Br. Ch. C Brown's Chancery Cases, English Chancery. Br. N. C Brooke's New Cases, English King's Bench. Br. P. C Brown's Parliamentary Cases, English House of Lords. Brae, or Bract. . . . Bracton de Legibus et Consuetudinibus Anglias. Brad, or Bradf. Surr. . Bradford's Reports, New York Surrogate. Branch Branch's Reports, Florida Supreme Court; Florida Reports.vol. 1. '^'^Max ^''' "^ ^"^'^"^ I Branch's Principia Legis et .ffiquitatis ; Branch's Maxims. Brayt Brayton's Reports, Vermont Supreme Court. Breese Breese's Reports, Illinois Supreme Court. Brev Brevard's Reports, South Carolina Supreme Court. Brew Brewer's Reports, Maryland Supreme Court; Maryland He- ports, vols. 19-26. Brews Brewster's Reports, various Pennsylvania Courts. Bridg J. Bridgman's Reports, English Common Pleas. Bridg. O Orlando Bridgman's Reports, English Common Pleas. Bright H. & W. . . . Bright on Husband and Wife. Brightly Brightly's Eeports, various Pennsylvania Courts. Brightly Dig Brightly's Digest of the Laws of the United States. Brightly Fed. Dig. . . Brightly's Federal Digest. Britt Britton on Ancient Pleadings. Bro. Abr Brooke's Abridgment. Bro. Ch C Brown's Chancery Cases, English Chancery. Bro. Civ. Law . . . Browne on Civil and Admiralty Law. Bro. Ent Brown's Entries. Bro. N. C Brooke's New Cases, English King's Bench. Bro. P. C Brown's Parliamentary Cases, English House of Lords. Bro. Sales Brown on Sales. Bro. Stair Brodie's Notes and Supplement to Stair's Institutions of the Law of Scotland. Bro. Supp Brown's Supplement to Morrison's Dictionary. Bro. Syn Brown's Synopsis of Decisions of Scotch Court of Session. Bro. V. M Brown's Vade Mecum. Brock, or Brock. C. C. 1 Brockenborough's Reports, Marshall's United States Circuit or Brock. Marsh. ) Court Decisions. Brod. & B Broderip & Bingham's Reports, English Common Pleas. Broom Com. Law . . Broom on Common Law. Broom Const Law . . Broom on Constitutional Law. Broom Max Broom on Legal Maxims. Broom & H. Com. . . Broom & Hadley's Commentaries on the Laws of England. Broun or Broun Just. . Broun's Reports, Scotch Justiciary Court. Brown or Brown N. P. Brown's Reports, Michigan Nisi Prius Cases. Brown Ch. C. . . . Brown's Chancery Cases, English Chancery. Brown Diet, or Brown Brown's Law Dictionary. Brown Ent Brown's Entries. Brown P. C Brown's Parliamentary Cases, English House of Lords. Brown Sales .... Brown on Sales. Brown Supp Brown's Supplement to Morrison's Dictionary. Brown Syn Brown's Synopsis of Decisions of Scotch Court of Session. Brown V. ML . . . . Brown's Vade Mecum. Brown & L Browning & Lushington's Reports, English Admiralty. Browne Browne's Reports, Massachusetts Supreme Court ; Massachu- setts Eeports, vols. 97-109. Browne Act Browne on Actions. Browne Civ. Law . . Browne on Civil and Admiralty Law. Browne Frauds . . . Browne on the Statute of Frauds. Browne (Pa.) .... Browne's Reports, Pennsylvania Common Pleas. xii TABLE OF ABBREVIATIONS Browne Tradem. . . Browne on Trademarks. Browne & G Browne & Gray's Eeports, Massaehusetis Supreme Court ; Mas- sachusetts Reports, vols. 110-114. Browning, Mar. & D. . Browning on Marriage and Divorce. Browning & L. . . . Browning & Lushington's Eeports, English Admiralty. Brownl. or Brownl. & 1 B^ownlow & Goldsborough's Eeports, EngUsh Common Pleas. BrownLBrev. Jud. , . Brownlow Brevia Judicialia. Bruce Bruce's Cases, Scotch Court of Session. Buck Buck's Bankruptcy Cases. Bull. N. P Buller on the Law of Nisi Prius. BuUen & L BuUen & Leake's Precedents of Pleadings. Bulst Bulstrode's Eeports, English King's Bench. Bump Bankr. Pr. . . Bump on Bankruptcy Practice. Bunb Bunbury's Eeports, English Exchequer. Burge Col. & For. Law Burge on Colonial and Foreign Law. Burge Sur Burge on Suretyship. Burlam. Nat. Law . . Burlamaqui on Natural and Public Law. Burn Diet Burn's Law Dictionary. Burn Eccl. Law . . . Burn on Ecclesiastical Law. Burn Just Bum's Justice of the Peace. Burn. (Wise.) .... Burnett's Reports, Wisconsin Territorial Courts. Burr Burrow's Reports, English King's Bench. Burr. Sett. Cas. . . . Burrow's Settlement Cases. Burrill Ass Burrill on Voluntary Assignments. Burrill Circ. Ev. . . . Burrill on Circumstantial Evidence. Burrill Diet, or Burrill Burrill's Law Dictionary. Bush Busbee's Law Eeports, North Carolina Supreme Court. Busb. Eq Busbee's Equity Reports, North Carolina Supreme Court Bush Bush's Eeports, Kentucky Court of Appeals. Butler Co. Litt. . . . Butler's Notes to Coke on Littleton. Byles Bills Byles on Bills. Bynk. War .... Bynkershoek on the Law of War. Bynk. Jur. Pub. . . . Bynkershoek's Quaestiones Juris Publici. Byth. Prec Bythewood's Precedents. C Chapter. Chancellor. Chancery. Codex Juris Civilis. C. B Chief Baron. Common Bench. English Common Bench Reports. C. B. N. s English Common Bench Eeports, New Series. C. C Chancery Cases. Circuit Court. Civil Code. Code Napoleon. Crown Cases. CCA County Court Appeals. C. C. P Code of Civil Procedure. C. C. E Crown Cases Reserved. C. Cr. P Code of Criminal Procedure. C. J Chief Judge. Chief Justice. C. J. C Cowper's Justiciary Cases, Scotch Justiciary Court. C. L. P. Act .... English Common Law Procedure Act. C. L. E Common Law Reports. C. M. & R Crompton, Meeson, & Roscoe's Reports, English Exchequer. C. P. Code of Procedure. Common Pleas. C. S Scotch Court of Session. C. t. N Cases tempore Northington. C. & F Clark & Finnelly's Reports, English House of Lords. C. & K Carrington & Kirwan's Reports, English Nisi Prius. C. & M Carrington & Marshman's Reports, English Nisi Prius. C. & P Carrington & Payne's Reports, Englisli Nisi Prius. Ca Case. Placita. Cases. See Cas. et seq. Ca. resp Capias ad respondendum. Ca. sa Capias ad satisfaciendum. Cai Caines' Eeports, New York Supreme Court. Cai. Cas Caines' Cases, New York Court of Errors. Cal California. California Reports, Supreme Court. Cald Caldecott's Reports, English Justice of the Peace Cases. Caldw. Arb Caldwell on Arbitration. Call Call's Reports, Virginia Court of Appeals. Calth Calthorpe's Eeports, English King's Bench. ' Calv. Lex Calvin's Lexicon Juridicum. Calv. Par Calvert on Parties to Suits in Equity. Cam Cameron's Eeports, Upper Canada Queen's Bench. USED IN JURISPRUDENCE. Cam. Brit. . Cam. Scacc. Cam. & N. . . Camp. . . Can. . . . Car. H. & A. Car. Law Rep. Car. O. & B. Car. & K. . Car. & M. . Car. & 0. . Car. & P. . Carp. . . Cart. . . . Cart. (Ind.) Carth. . , Gary. Cas. B. E. Cas. Ch. Cas. L. & Eq. . Cas. Pr. C. P. Cas. Pr. K. B. Cas. Set. . . Cas. Six Circ. Cas. t. P. . Cas. t. H. . Cas. t. Holt Cas. t. King Cas. t. Mace. Cas. t. Talbot . Cas. t. Will. Ill, Cas. w. Op. or Op. . . . Casey . . . Cas. Ch. Cas. . . Ch. Cas. Ch. . Ch. J. . . . Ch. Pre. . . . Ch.R. . . . Chamb. . . . Chand. (N. H.) Chand. (Wis.) Charlt. B. M. . Cliarlt. T. U. P. Cheves . . . Ciieves Eq. Cliic. Leg. News . Chip. D. . . Chip. N. . . Chit. Arch. Pr. Chit. B. C. . . Cliit. Bills . . Cliit. Bl. Com. Chit. Bum J. . Cliit. Con. . . Chit. Crini. L. Chit. Jr. Bills . Chit. PI. . . Chit. Pr. . . Cho. Cas. Ch. . Cine City Hall Eeo. Civ. Code . . . Camden's Britannia. Camera Scaccarii; Exchequer Chamber. Cameron & Norwood's Reports, North Carolina Court of Con- ference ; Conference Reports. Campbell's Reports, English Nisi Prins. Canada. iCarrow, Hamerton, & Allen's Reports, Magistrates' Cases, Eng- lish Courts. Carolina Law Repository. Carrow, Oliver,. & Beavan's Railway and Canal Cases. Carrington & Kirwan's Reports, English Nisi Prius. Carrington & Marshman's Reports, English Nisi Prius. Carrow & Oliver's Railway and Canal Cases. Carrington & Payne's Reports, English Nisi Prius. Carpmael's Patent Cases. Carter's Reports, English Common Pleas. Carter's Reports, Indiana Supreme Court; Indiana Reports, vols. 1, 2. Carthew's Reports, English King's Bench. -C&ry'a Reports, English Chancery. Cases Banco Regis ; Modern Reports, vol. 12. Cases in Chancery. Cases in Law and Equity ; Modem Reports, .vol. 10. Gases. of Practice, .English Common Pleas; Cooke's Practice Cases. Cases of Practice, English King's Bench. , Cases of Settlement, English King's Bench. Cases on the Six Circuits, Irish King's Bench. Cases tempore Finch, English Chancery ; Reports tempore Pinch. Cases tempore Hardwioke, English King's Bench. Gases tempore Holt, English King's Bench ; Holt's Reports. . Gases tempore King, English Chancery. Cases tempore Macclesfield, English Law and Equity Cases; Modern Reports, vol. 10. , Cases tempore Talbot, English Chancery, . Cases tempore William III. ; Modern Reports, vol. 12. ' > Cases with Opinions of Eminent Counsel. , Casey's Reports, Pennsylvania Supreme Court; Pennsylvania State Reports, vols. 25-36. , Gases in Chancery. Choyce Cases in Chancery. Chief Judge. Chief Justice. . Precedents in Chancery. Chancery Reports. Chamber Reports, Upper Canada. Chandler's Reports, New Harapshure Supreme Court; New Hampshire Reports, vols. 20, 38-44. Chandler's Reports, Wisconsin Supreme Court. , B. M. Charlton's Reports, Georgia Supreme Court. T. U. P. Charlton's Repcirts, Georgia Supreme Court. Cheves's Cases at Law, South Carolina Court of Appeals. Cheves's Cases in Equity, South Carolina Court of Appeals. , Chicago Legal News. . D. Cliipman's Reports, Vermont Supreme Court. . N. Chip man's Reports, Vermont Supreme Court. Chitty's Archbold's Practice. Chitty's Bail Court Reports; English Bail Court. Chitty on Bills. Chitty's Blackstone's Commentaries. Chitty's Bum's Justice. Chitty on Contracts. Chitty on Criminal Law. Chitty Junior on Bills. Chitty on Pleading. Chitty on General Practice. Choyce Cases in Chancery. Cincinnati Reports, Superior Court of Cincinnati, Ohio.- City Hall Recorder, New York City Courts. Civil Code. xiv TABLE OF ABBREVIATIONS CI. Ass Clerk's Assistant. Clark Clark's Reports, English House of Lords ; House of Lords Cases, vols. 3-11. Clark & F Clark & Finnelly's Reports, English House of Lords. Clark & F. N. B. . . . Clark & Finnelly's Reports, New Series, English House of Lords ; House of Lords Cases, vols. 1, 2. Clarke (Iowa) . . . Clarke's Reports, Iowa Supreme Court; Iowa Reports, vols. 1-8. Clarke (Mich.) . . . Clarke's Reports, Michigan Supreme Court ; Michigan Reports, vols. 19-22. Clarke (N. Y.) Ch. . . Clarke's Chancery Reports, New York Chancery. Clayt Clayton's Reports, English Assizes. Cliff Clifford's Reports, United States Circuit Court. Clift Ent Cliffs Entries. Co Coke's Reports. Co. Ent Coke's Entries. Co. Litt Coke on Littleton. Cobb Cobb's Reports, Georgia Supreme Court; Georgia Reports, vols. 6-20. Cock. & R Cockburn & Rowe's Election Cases. Cocke (Ala.) .... Cocke's Reports, Alabama Supreme Court; Alabama Reports, vols. 16-18. Cocke (Fla.) .... Cocke's Reports, Florida ■ Supreme Court ; Florida Reports, vols 14, 15. Cod. Jur. Civ Codex Juris Civilis ; Justinian Codex. Code Civ. or Code N. . Code Civil ; Code Napoleon. Code P Code Penal. Code P. C Code de Procedure Civile. Code Pro Code of Procedure. Code R. IT. 8 Code Reports, various New York Courts. Code Rep Code Reporter, various New York Courts. Col Colorado. Colorado Reports, Territorial Courts. Col. Cas Coleman's Cases, New York Supreme Court. Col. & C. Cas Coleman & Caines' Cases, New York Supreme Court. Coldw Coldwell's Reports, Tennessee Supreme Court. Cole Inf. Cole on Criminal Informations. Coll CoUyer's Reports, English Chancery. Coll. Pari. Cas. . . . Colles' Parliamentary Cases. Coll. Part CoUyer on Partnership. Com Comyns' Reports, English King's Bench and Common Fl^s. Com. Dig. Comyns' Digest. Com. B English Common Bench Reports. Com. B. N. s English Common Bench Reports, New Series Com. Law R Common Law Reports, English Common Law Courts. Comb Comberbach's Reports, English King's Bench. Corns Comstock's Reports, New York Court of Appeals ; New York Reports, vols. 1-4. Con. (Wis.) .... Conover's Reports, Wisconsin Supreme Court; Wisconsin Re- ports, vols. 16-41. Con. & L. Connor & Lawson's Reports, Irish Chancery. Conf Cameron & Norwood's Conference Reports, North Carolina Court of Conference. Conn Connecticut. Connecticut Reports, Supreme Court of Errors. Cons, del Mare . . . Consolato del Mare. Consist. . • Haggard's Consistory Reports, English Consistory Court. Const Treadway's Constitutional Reports, South Carolina Constitu- tional Court. Const. N. s Mill's Constitutional Reports, New Series, South Carolina Con- stitutional Court. Cont Conira ; opposed ; to the contrary. Compare Ago. Cooke Cooke's Practice Cases, English Common Pleas. Cooke (Tenn.) . . . Cooke's Reports, Tennessee Supreme Court. Cooke & A Cooke & Alcock's Reports, Irish King's Bench and Exchequer Chamber. Cooley Cooley's Reports, Michigan Supreme Court ; Michigan Reports, vols. 6-12. Cooley Const. Lim. . . Cooley on Constitutional Limitations. Coop Cooper's Reports, English Chancery. Coop. Inst. Cooper's Institutes of Justinian. Coop. Pr. Cas. . . . Cooper's Practice Cases, English Chancery. Coop. t. Brough. . . . Cooper's Reports tempore Brougham, English Chancery. USED m JURISPRUDENCE. xv Coop. t. Cotten. . . . Cooper's Beports tempore Cottenham, English Chancery. Coote Mort Coote on Mortgages. Corb. & D Corbett & Daniell's Election Cases. Corp. Jur. Civ. . . . Corpus Juris Civilis. Corpus Jur. Can. . . Corpus Juris Canonici. Cow Cowen's Reports, New York Supreme Court and Court of Errors. Cowell or Cowell Diet. Cowell's Law Dictionary ; Cowell's Interpreter. Cowp Cowper's Reports, English King's Bench. Cox, or Cox Ch. . . Cox's Reports, English Chancery. Cox (Ark.) .... Cox's Reports, Arkansas Supreme Court; Arkansas Reports, Tols. 25-27. Cox Cr. Cas Cox's Criminal Cases, English and Irish Courts. Cox Tr. Cas Cox's American Trademark Cases. Coxe Coxe'sReports, New Jersey Supreme Court and Court of Errors; New Jersey Law Reports, vol. 1. Crabbe Crabbe's Reports, United States District Court. Craig & P Craig & Pliillips' Reports, English Chancery. Craig. & S Craigie, Stewart, & Paton's Reports, Scotch Appeals, English House of Lords. Cranoh Cranch's Reports, United States Supreme Court. Cranch C. C Cranch's Reports, Circuit Court of District of Columbia. Craw. & D Crawford & Dix's Reports, Irish Circuit Cases. Craw. & D. Abr. Cas. . Crawford & Dix's Abridged Notes of Cases, Irish Law and Equity Courts. Critchf Critchfield's Reports, Ohio Supreme Court; Ohio State Reports, vols. 5-21. Cro Croke's Reports, English King's Bench and Common Pleas, the separate volumes of which are usually cited Cro. Eliz., Cro. Jac, and Cro. Car. Sometimes Cro. refers to Keilway's Re- ports, published by Serjeant Croke. ■ Crock. Sher Crocker on Sheriffs. - Cromp Star Chamber Cases. Cromp. M. & R. . . . Crompton, Meeson, & Roscoe's Reports, English Exchequer. Cromp. & J Crompton & Jervis's Reports, English Exchequer. Cromp. & M Crompton & Meeson's Reports; English Exchequer. Cruise Dig Cruise's Digest of the Law of Real Property. Ct. of CI Court of Claims Reports, United States Court of Claims. Cummins Cummins' Reports, Idaho Territorial Courts ; Idaho Reports, vol. 1. Cun Cunningham's Reports, English King's Bench. Curry Curry's Reports, Louisiana Supreme Court ; Louisiana Reports, vols. 6-19. Curt. C. C Curtis's Reports, United States Circuit Court. Curt. Cond Curtis's Condensed Reports, United States Supreme Court. Curt. Copyright . . . Curtis on Copyright. , Curt. Ecc. or Curteis . Curteis's Ecclesiastical Reports, English Ecclesiastical Courts. Curt. Fat. Curtis on Patents. Cush Cushing's Reports, Massachusetts Supreme Court; Massachu- setts Reports, vols. 55-66. Cush. El. Cas. . . . Cushing's Election Cases, Massachusetts Courts. Cushm Cushman's Beports, Mississippi High Court of Errors and Ap- peals ; Mississippi Reports, vols. 23-29. D Digest, particularly the Digest of Justinian. Dictionary, par- ticularly Morrison's Dictionary of the Law of Scotland. Dictum. D. C District Court. D. Chip D. Chipman's Reports, Vermont Supreme Court. D. N. s Dowling's Bail Court Beports, New Series, English Bail Court. D. P. B Dampier's Paper Book ; Compare A. P. B. D. & C Deacon & Chitty's Reports, English Bankruptcy Cases. D. & L Dowling & Lowndes' Reports, English Practice Cases. D. & M Davison & Merivale's Reports, English Queen's Bench. D. & R Dowling &, Ryland's Reports, English King's Bench. D. & S Doctor and Student. Dal Dalison's Reports, English Common Pleas. Dall Dallas' Reports, United States and Pennsylvania Courts. Dalr Dalrymple's Cases, Scotch Court of Session. Dalr. Feud. Prop. . . Dalrymple on Feudal Property. , Dalt. Just Dalton's Justice. xvi TABLE OF ABBREVIATIONS Dalt. Sher. .... Dalton's Sheriff. Daly Daly's Reports, New York Common Fleas. D'An D'Anrers' Abridgment. Dan Daniell's Reports, English Exchequer Equity. Dan. Ch. Pr Daniell's Chancery Practice. Dana . . . . . . Dana's Reports, Kentucky Court of Appeals. - Dane Abr. Dane's Abridgment. Danner ■ Danner's Reports, Alabama Supreme Court ; Alabama Reports, vol. 42. Dans. & LI Danson & Lloyd's Mercantile Cases. D'Anv. Abr. , . . D'Aqvers' Abridgment. Das Dasent's Reports ; Common Law Reports, vol. 3. Dav. or Davies . . . Davies' Reports, Irish King's Bench. Dav. Pat. Cas. . . . Davis' Patent Cases, English Courts. Dav. & M Davison & Merivale's Reports, English Queen's Bench. Daveis Daveis' Reports, United States District Court. Day Day's Reports, Connecticut Supreme Court of Errors; Con- necticut Reports, vols. 1-21. Dayt. Surr Dayton on Surrogates. De 6 . De Gex's Reports, English Bankruptcy Cases. DeG. F. &J. . . . De Gex, Fisher, & Jones' Reports, English Chancery. De G. J. & S. . . . De Gex, Jones, & Smith's Reports, English Chancery. De 6. M. & G. . . . De Gex, Macnaghten, & Gordon's Reports, English Chancery. De G. & J De Gex & Jones' Reports, English Chancery. De G. & S. . . . '. De Gex & Smale's Reports, English Chancery. Dea. & Sw Deane & Swabey's Reports, English Probate and Divorce Courts. Deac Deacon's Reports, English Bankruptcy Cases. Deac. Bankr. .... Deacon on Bankruptcy. Deac. & C Deacon & Chitty's Reports, English Bankruptcy Cases. Deady Deady's Reports, United States Circuit and District Courts. Deane or Deane Ec. . Deane & Swabey's Reports, English Probate and Divorce Courts. Deane (Vt.) .... Deane's Reports, Vermont Supreme Court ; Vermont Reports, vols. 24-26. Dears Dearsly's Crown Cases Reserved, English Courts. Dears. & B Dearsly & Bell's Crown Cases Reserved, English Courts. Deas & And Deas & Anderson's Reports, Scotch Court of Session Cases. Den. or Denio . . . Denio's Reports, New York Supreme Court and Court of Ap- peals. Den. C. C: . . . . Denison's Crown Cases Reserved, English Courts. Des. or Desaus. . . . Desaussure's Reports, South Carolina Chancery and Court of Appeals. Dev ; . . Devereux's Reports, United States Court of Claims. Dev. Eq Devereux's Equity Reports, North Carolina Supreme Court. Dev. L Devereux's Law Reports, Nbrth Carolina Supreme Court. Dev. & B. Eq. . . . Devereux & Battle's Equity Reports, North Carolina Supreme Court. Dev. & B. L Devereux's & Battle's Law Reports, North Carolina Supreme ' Court. Dewitt Dewitt's Reports, Ohio Supreme Court: Ohio State Reports. vols. 24-27. Di Dyer's Reports, English King's Bench. Dicey Part. . ... Dicey on Parties to Actions. Dick Dicken's Reports, English Chancery. Dick. Just Dickenson's Justice. Dick. Qr. Sess. . . . Dickenson's Quarter Sessions Guide. Dig Digest, particularly the Digest of Justinian. Dill Dillon's Reports, United States Circuit Court. Dirl Dirleton's Decisions, Scotch Court of Session . Disney ...... Disney's Reports, Superior Court of Cincinnati, Ohio. Doct. & S. Doctor & Student. Dods Dodson's Reports, English Admiralty Courts. Domat ...... Domat on Civil Law. Domesd. ..... Domesday Book. Doug Douglas' Reports, Snglish King's Bench. Doug. El. Cas Douglas' Election Cases. Doug. (Mich.) . . . Douglass' Reports, Michigan Supreme Court. Dow Pow's Cases, English House of Lords. Dow & C Dow & Clark's Cases, English House of Lords. Dowl. Bowl. N. 8. . . Dowl. Pr. C. , Dowl. Pr. C. H. 8 Dowl. & L. Dowl. & Ey. . . Dowl. & Ry. M. C. Dowl. & Ry. N. P. Drake Attach. . Draper .... Drew (Fla.) . . USED IN JURISPRUDENCE. Dowling's Bail Court Reports, English Bail Court. Dowling's Bail Court Reports, New Series, English Bail Court. Dowling's Reports, English Practice Cases. Dowling's Reports, New Series, English Practice Cases. Dowling & Lowndes, Bail Court Reports, English Bail Court. Dowling & Lowndes Reports, English Practice Cases. Dowling & Ryland's Reports, English King's Bench. Dowling & Ryland's Magistrates' Cases, English King's Bench. Dowling & Ryland's Nisi Prius Cases, English Courts. Drake on Attachments. Draper's Reports, tipper Canada King's Bench. Drew's Reports, Florida Supreme Court ; Florida Reports, vol. 13. Drewry or Drew Drewry's Reports, English Chancery. Dr^wry & S. or Drew. | D^g^^y 4. gmale's Reports, English Chancery. Dru. or Drury . . . Drury's Reports, Irish Chancery. Dru. & Wal Drury & Walshe's ReportSj Irish Chancery. Dru. & War Drury & Warren's Reports, Irish Chancery. - Dub Dubitatur; it is doubted; it is doubtful. Dudley Dudley's Reports, Georgia Superior Courts. Dudley Eq Dudley's Equity Reports, South Carolina Court of Appeals. DudleyL.;. , . . . . Dudley's Law Reports, South Carolina Court of Appeals. Duer Duer's Reports, New York City Superior Court Dugd. Grig Dugdale's Origlnes Juridiciales. - Duke Char, Uses . . Duke on Charitable Uses. Dun. Adm. Pr. . . . Dunlap's Admiralty Practice. Dunl. or Dun. . . . Dunlop, Bell, & Murray's Reports, Scotch Court of Session. Durf. Durfee's Reports, Rhode Island Supreme Court; Rhode Island Reports, vol. 2. Durie Durie's Reports, Scotch Court of Session. Durnf . & E Durnford & East's Reports, English King's Bench ; Term Re- ports. Dutch Dutcher's Reports, New Jersey Supreme Court; New Jersey Law Reports, vols. 25-29. Duv Duvall's Reports, Kentucky Court of Appeals. Dwar. Stat Dwarris on Statutes. Dy. or Dyer .... Dyer's Reports, English King's Bench. E. . Easter Terra. E. C. L English Common Law Reports. E. E. R English Ecclesiastical Reports. E. L. & Eq EngUsh Law and Equity Reports. E. T Easter Term. E. & A Spinks' Ecclesiastical and Admiralty Reports. Eag. & Yo Eagle & Younge's Tithe Cases. East East's Reports, English King's Bench. East P. C East's Pleas of the Crown. Ec. & Ad Spinks' Ecclesiastical and Admiralty Reports. Eden Eden's Reports, EngUsh Chancery. " Edg. Edgar's Reports, Scotch Court of Session. Edic. .* Edicta by Justinian. Edm. Sel. Cas. . . . , Edmond's Select Cases, New York Courts. Edw King Edward ; thus 1 Edw. I. signifies the first year of the reign of King Edward I. Edw. Adm Edward's Admiralty Reports, English Admiralty. Edw. Ch Edwards' Chancery Reports, New York Chancery and Supreme Court. Edw. (Mo.) .... Edward's Reports, Missouri Supreme Court ; Missouri Reports, vols. 2, 3. El. B. & E Ellis, Blackburn, & Ellis' Reports, English Queen's Bench. El. B. & S Ellis, Best, & Smith's Reports, English Queen's Bench. El. & B Ellis & Blackburn's Reports, English Queen's Bench. El. & E. Ellis & Ellis' Reports, English Queen's Bench. Elchie Elchie's Decisions, Scotch Court of Session. Emer. Ins. ..... Euierigon on Insurances. Eng English's Reports, Arkansas Supreme Court ; Arkansas Reports, vols. 6-13. Eng. Com. L English Common Law Reports. Eng. Ec English Ecclesiastical Reports. b xviii TABLE OF ABBREVIATIONS Eng. Exch English Exchequer Beports. Eng. L. & Eq. . . . English Law and Equity Beports. Eq. Cas. Abr. . . . -Equity Cases Abridged. \ Eq. B Equity Beports, English Chancery, and Appeals from Colonial Courts. Ersk. Inst. .... Erskine's Institute of the Law of Scotland. Ersk. Prin Erskine's Principles of the Law of Scotland. Esp. or Esp. N. P. . . Espinasse's Beports, English Nisi Prius Cases. Eunom Wynne's Eunomus. Exch Exchequer Reports, English Exchequer. Eyre Eyre's Beports, English King's Bench tempore Wm. III. F. . , Fitzherbert's Abridgment. F. C Faculty of Advocates Collection, Scotch Court of Session Cases. F. B. C Fonblanque's Bankruptcy Cases. P. N. B Fitzherbert's Natura Brevium. F. & F Foster & Finlason's Reports, English Nisi Prius Cases. Fac. CoU Faculty of Advocates Collection, Scotch Court of Session Cases. Fairf Fairfield's Beports, Maine Supreme Court; Maine Beports, vols. 10-12. Falc Falconer's Reports, Scotch Court of Session. Falc. & F Falconer & Fitzherbert's Election Cases. Farr Farresley's Reports, English King's Bench; Modem Beports, Tol. 7. Fearne or Fearne Rem. Fearne on Contingent Remainders and Executory Devises. Fed The FederaUst. Ferard Fix Amos & Ferard on Fixtures. Ferg Ferguson's Reports, Scotch Consistorial Court. Ff. Pandects of Justinian. Fi. fa Fieri facias. Fin. or Finch .... Finch's Reports, English Chancery ; Reports tempore Finch. Finch Law .... Finch's Law. Fish. Dig Fisher's Digest, English Reports. Fish. Pat. Cas. . . . Fisher's Patent Cases, United States Circuit Courts. Fitz. Abr Fitzherbert's Abridgment. Fitz. N. B Fitzherbert's Natura Brevium- Fitz-G Fitz Gibbon's Reports, English Courts. Fl Fleta, Commentarius Juris Anglicani. Fla Florida. Florida Reports, Supreme Court. Flan. & K Flanagan & Kelly's Reports, Irish Rolls Court. Fogg Fogg's Reports, New Hampshire Supreme Court ; New Hamp- shire Reports, vols. 32-37. Fol Foley's Poor Law Reports, English Courts. Fol. Diet Karnes & Woodhouslee's Dictionary Scotch Court of Session Cases. Fonbl. or Fonb. Eq. . Fonblanque on Equity. Forbes Forbes' Reports, Scotch Court of Session. Forrest or Forr. . . . Forrest's Reports, English Exchequer. Forrester or Forr. Ch. . Forrester's Reports, English Chancery ; Cases tempore Talbot. Fortes Fortescue's Reports, English Courts. Fortes, de Laud. . . Fortescue de Laudibus Anglise Legum. Fost Foster's Reports and Crown Law, English Courts. * Fost. (N. H.) . . . . Foster's Beports, New Hampshire Supreme Court; New Hamp- shire Beports, vols. 21-31. Fost. & F Foster & Finlason's Beports, English Nisi Prius Cases. Fount Fountainhall's Beports, Scotch Court of Session. Fox & S Fox & Smith's Beports, Irish King's Bench and Court of Error. Fr Fragment ; Law, in titles of Pandects of Justinian. Fr. Max. or Fran. Max. Francis' Maxims. Fras. Dom. Rel. . . . Eraser on Personal and Domestic Eelations. Fras. El. Cas. . . . Eraser's Election Cases. Freem Freeman's Reports, English King's Bench and Chancery. Freem. Ch Freeman's Reports, vol. 2, English Chancery. Freem. (111.) .... Freeman's Reports, Illinois Supreme Court ; Illinois Reports, vols. 31-80. Freem. (Miss.) . . . Freeman's Beports, Mississippi Superior Court of Chancery. Q King George ; thus 1 G. I. signifies the first year of the reign of King George I. G. & J Glyn & Jameson's Bankruptcy Cases, English Courts. USED m JURISPRUDENCE. six Ga Georgia. Georgia Reports, Supreme Court. Ga. Dec Georgia Decisions, Superior Courts. Gaius Gaius' Institutes, Galb Galbraitti's Reports, Florida Supreme Court j Florida Reports, vols. 9-11. Galb. & M Galbraith & Meek's Reports, Florida Supreme Court ; Florida Reports, vol. 12, Gale Gale's Reports, English Exchequer. Gale & D Gale & Davison's Reports, English Queen's Bench, Gale & W Gale & Whatley on Easements. Gall, or Gallis. . . . Gallison's Reports, United States Circuit Court. Gardenlt Gardenhire's Reports, Missouri Supreme Court; Missouri Re- ports, vols. 14, 15. Geo King George ; see G. Georgia ; see 6a. George George's Reports, Mississippi High Court of Errors and Ap- peals ; Mississippi Reports, vols. 30-37. Ger, Real Est. . . . Gerard on Titles to Real Estate. Gibbs Gibbs' Reports, Michigan Supreme Court ; Michigan Reports, vols. 2-4. Gibs. Cod Gibson's Codex Juris Ecclesiastici Anglicani. GifE Giffard's Reports, English Chancery. Gilb. or Gilb. Ch. . . Gilbert's Reports, English Chancery, Gilb. Cas Gilbert's Cases in Law and Equity, Gill Gill's Reports, Maryland Court of Appeals. Gill & J Gill & Johnson's Reports, Maryland Court of Appeals, Gilm Gilmour's Reports, Scotch Court of Session. Gilm. (111.) or Gilman. Gilman's Reports, Illinois Supreme Court; Illinois Reports, vols. &-10. Gilm. (Va.) or Gilmer . Gilmer's Reports, Virginia Court of Appeals. Gilp Gilpin's Reports, United States District Court. Gl Glossa ; a gloss ; an interpretation. Glanv Glanville de Legibus. Glasc Glascock's Reports, Irish Courts. Glenn Glenn's Reports, Louisiana Supreme Court ; Louisiana Annual, vols. 16-18. Glyn & J Glyn & Jameson's Bankruptcy Cases, English Courts. Godb Godbolt's Reports, English Courts. Godolph Godolphin's Abridgment of Ecclesiastical Law. Gosf Gosford's Reports, Scotch Court of Session. Gould PI Gould on Pleading. Gouldsb Gouldsborough's Reports, English Courts. Gow or Gow N. P. . . Gow's Nisi Prius Cases, English Common Pleas, Graham & W. New Tri, Graham & Waterman on New Trials, Grand Coust, Norm. . Grand Coustoumier of Normandy. Grang Granger's Reports, Ohio Supreme Court ; Ohio State Reports, vols. 22, 23. GrantCas. or Grant (Pa.) Grant's Cases, Pennsylvania Supreme Court. Grant Corp Grant on Corporations. Grant U. C. Ch. , . . Grant's Reports, Upper Canada Chancery. Gratt Grattan's Reports, Virginia Court of Appeals and General Court Gray. Gray's Reports, Massachusetts Supreme Court ; Massachusetts Supreme Court, vols. 67-82. Green C. E C. E. Green's Reports, New Jersey Chancery and Court of Errors and Appeals; New Jersey Equity Reports, vols. 16-28. Green Eq. Green's Reports, New Jersey Chancery ; New Jersey Equity Reports, vols. 2-4. Green L. . . . ; . Green's Reports, New Jersey Supreme Court and Court of Errors and Appeals ; New Jersey Law Reports, vols. 13-15. Greene, or Greene (Iowa) Greene's Reports, Iowa Supreme Court. Greenl Greenleaf's Reports, Maine Supreme Court ; Maine Reports, vols, 1-9. Greenl. Cru. Dig. ■ . . Greenleaf's Cruise's Digest. Greenl, Evid Greenleaf on Evidence, Grisw Griswold's Reports, Ohio Supreme Court: Ohio Reports, vols, 14-19. Gro. B. et P. or Gro. de 1 „ .. , , t. n- x t. • J g _ i Grotras de Jure Belh et Pacis. Gundry Gundry Manuscripts, in Lincoln's Inn Library. xx TABLE OF ABBREVIATIONS Guy Med. Jur. . . . Guy on Medical Jurisprudence: ' Gwill. or Gwm. . . . Gwlllim's Tithe Cases. H king Henry ; thus 1 H. I. signifies the first year of the reign of King Henry I. Hilary Term. H. Bl . . Henry Blackstone's Reports, English Common Pleas and Ex- chequer Chamber. H. L House of Lords. House of Lords Cases. H. P. C Hale's Pleas of the Crown. H. & C Hurlstone & Coltman's Reports, English Exchequer. H. & G Harris & Gill's Reports, Maryland Court of Appeals. H. &J Harris & Johnson's Reports, Maryland Court of Appeals. H. & M Harris & McHenry's Reports, Maryland Provincial Court, and Court of Appeals. H. & N. . ; . . . . Hurbtone & Norman's Reports, English Exchequer. Hadd Haddington's Reports, Scotch Court of Session. Hadl Hadley's Reports, New Hampshire Supreme Court; New Hamp- shire Reports, vols. 45-48. Hagans Hagan's Reports, West Virginia Supreme Court of Appeals; West Virginia Reports, vols. 1-5. Hagg. Adm Haggard's Admiralty Reports, English Admiralty. Hagg. Cons Haggard's Consistory Reports, English Consistory Court Hagg. Ee Haggard's Ecclesiastical Reports, English Ecclesiastical Courts. Hailes Hailes' Decisions, Scotch Court of Session. Hale Hale's Reports, California Supreme Court ; California Report^ vols. 33-37. Hale C. L Hale's History of the Common Law. Hale P. C Hale's Pleas of the Crown. Hall Hall's Reports, New York City Superior Court. Hall & T Hall & Twell's Reports, English Chancery. Halst. Ch. or Halst. Eq. Halstead's Reports, New Jersey Chancery and Court of Errors and Appeals ; New Jersey Equity Reports, vols. 6-8. Halst. L Halstead's Reports, New Jersey Supreme Court and Court of Errors and Appeals ; New Jersey Law Reports, vols. 6-12. . Ham. A. & O. . . ■ Hamerton, Allen, & Otter's Magistrates' Cases, English Courts ; New Sessions Cases, vol. 3. Hamm. (Ga.) .... Hammond's Reports, Georgia Supreme Court ; Georgia Reports, vols. 36-44. Hamm. (0.) .... Hammond's Reports, Ohio Supreme Court; Ohio Reports^ vols. 1-9. Hamm. & J Hammond & Jackson's Reports, Georgia Supreme Court ; Georgia Reports, vol. 45. Hand Hand's Reports, New York Court of Appeals; New York Reports, vols. 40-45. Handy Handy's Reports, Cincinnati Superior Court. Hanm Hanmer's Lord Kenyon's Notes, English King's Bench. Hans Hansard's Entries. Har. & G Harris & Gill, Maryland Court of Appeals. Har. & J Harris & Johnson, Maryland Court of Appeals. Har. & M. . . . . . Harris & MoHenry, Maryland Provincial Court and Court of Appeals. Hare Harcarse's Decisions, Scotch Court of Session. Hard Hardres' Reports, English Exchequer. Hardin or Hard. (Ky.) . Hardin's Reports, Kentucky Court of Appeals. Hare . Hare's Reports, English Chancery. Hare & W Hare & Wallace's American Leading Cases. Harg. St. Tr Hargrave's State Trials. Hargrove or Harg. N.C. Hargrove's Reports, North Carolina Supreme Court; North Carolina Reports, vols. 68-76. Harm Harmon's Reports, California Supreme Court ; California Re- ports, vols. 13-15. Harp Harper's Reports, South Carolina Constitutional Court: Harp. Eq Harper's Equity Reports, South CaroUna Court of Appeals. Harr. (Del.) .... Harrington's Reports, Delaware Superior Court and Court of Errors and Appeals. Harr. Dig. . .... Harrison's Digest of English Common Law Reports. Harr. (Ind.) .... Harrison's Reports, Indiana Supreme Court ; Lidiana Reports vols. 15-17, 23-29. ' Harr. (Mich.) . . . Harrington's Reports, Michigan Chancery. Harr. (N. J.) . . . . Harrison's Reports, New Jersey Supreme Court; New Jersey Law Reports, vols. 16-19. USED IN JURISPRUDENCE. xxi Harr. (Fa.) .... Harris's Reports, Pennsylvania Supreme Court ; Fennsylrania State Reports, vols. 13-24. Harr. & G Harris & Gill's Reports, Maryland Court of Appeals. Harr. & J Harris & Johnson's Reports, Maryland Court of Appeals. Harr. & M Harris & McHenry'a Reports, Maryland Provisional Court, and Court of Appeals. Harr. & R Harrison & Rutlierford's Reports, Englisli Common Pleas. liarr. & S Harris & Simrall's Reports, Mississippi Supreme Court; Missis- sippi Reports, vols. 49-51. / Harr. & W Harrison & Wollaston's Reports, English King's Bench. Hartley Hartley's Reports, Texas Supreme Court ; Texas Reports, vols. 4-21. Hawk Hawkins' Reports, Louisiana Supreme Court; Louisiana An- nual Reports, vols. 19-25. * Hawk. Co. Litt. . . . Hawkins' Coke upon Littleton. Hawk. P. C. . . . . Hawkins' Fleas of the Crown. Hawks Hawks' Reports, North Carolina Supreme Court. Hayes Hayes' Reports, Irish Exchequer. Hayes & J Hayes & Jones' Reports, Irish Exchequer. Hayes & J. Wills . . Hayes & Jarman on Wills. Hayw. (N. C.) ... Haywood's Reports, North Carolina Superior Courts of Law and Equity. Hayw. (Tenn.) . . . Haywood's Reports, Tennessee Supreme Court of Errors and Appeals. Head Head's Reports, Tennessee Supreme Court. Heath Heath's Reports, Maine Supreme Court ; Maine Reports, vols. 36-40. Hein Heineccius. Heisk Heiskell's Reports, Tennessee Supreme Court. Helm Helm's Reports, Nevada Supreme Court; Nevada Reports, vols. 2-9. Hemra. & M Hemming & Miller's Reports, English Chancery. Hempst Hempstead's Reports, United States Circuit Courts and Arkan- sas Territorial Courts. Hen King Henry ; thus 1 Hen. I. signifies the first year of the reign of King Henry I. Hen. Bl. Henry Blackstone's Reports, English Common Pleas and Ex- chequer Chamber. Hen. &M Hening & Mumford's Reports, Virginia Court of Appeals. Hepb Hepburn's Reports, California' Supreme Court ; California Re- ports, vols. 3-4. Her. Heme's Pleader. Het Hetley's Reports, English Common Pleas. Hill (N. Y.) .... Hill's Reports, New York Supreme Court and Court of Appeals. Hill (S. C.) . . . . Hill's Reports, South Carolina Court of Appeals. ^ Ch.^' ^'' ?^.' °! ^'! } ^"^'' Chancery Reports, South Carolina Court of Appeals. Hill 'Trust Hill on Trustees. Hill & D. Supp. . . . Lalor's Supplement to Hill and Denio's Reports, New York Supreme Court and Court of Appeals. Hilliard Real Prop. . . Hilliard on Real Propcirty. Hillyer Hillyer's Reports, California Supreme Court; California Re- ports, vols. 20-22. , Hil. T Hilary Term. Hilt Hilton's Reports, New York Common Pleas. Hob Hobart's Reports, English King's Bench. Hodg Hodges'Reports, English Common Fleas. ^°N™Y.)"''. °y ^°^"''. \ Hoffman's Reports, New York Chancery. HofEm. Land Cas. . . Hoffman's Land Cases, United States District Court. Hog Hogan's Reports, Irish Rolls Court. Hogan (Fa.) St. Tr. . Hogan's Pennsylvania State Trials. Hogue Hogue's Reports, Florida Supreme Court;- Florida Reports, vols. 3, 4. Hole. Lead. Cas. . . Holeombe's Leading Cases on Commercial Law. Holt . Holt's Reports, English King's Bench. Holt N. F Holt's Nisi Prius Reports, English Courts.- Holthouse Diet. . . . Holthouse's Law Dictionary. Home Clerk Home's Reports, Scotch Court of Session. xxii TABLE OF ABBREVIATIONS Hooker Hooker's Reports, Connecticut Supreme Court of Errors ; Con- necticut lieports, vols. 25-48. Hope Tiiomas Hope's Reports, Scotch Court of Session. Hopk. Adm Hopkinson's Reports, Pennsylvania Admiralty Court. Hopk. Ch Hopkins' Reports, New York Chancery. Hopw. & C Hopwood & Coltman's Reports, English Registration Appeal Cases. Hopw. & P Hopwood & Philbrick's Reports, English Registration Appeal Cases. Horn & H Horn & Hurlstone's Reports, English Exchequer. Home Mir Mirronr of Justicesi. House of L House of Lords. House of Lords Cases. Houst Houston's Reports, Delaware Superior Court and Court of * Errors and Appeals, Hov. Sup. Ves. . . . Hoveden's Supplement to Vesey. How Howard's Reports, United States Supreme Court. ^?N y'') Cas' *" ^°^' \ Howard's Appeal Cases, New York Court of Appeals. How. (Miss.) .... Howard's Reports, Mississippi High Court of Errors and Ap- peals ; Mississippi Reports, vols. 2-8. ^How' Pr.^'! ^.''. °\ I Howard's Practice Reports', New York Courts. How. St. fr. '. '. '. '. Howell's State Trials. Hubb Hubbard's Reports, Maine Supreme Court; Maine Reports, vols. 45-51. Huds. & B Hudson & Brooke's Reports, Irish King's Bench. Hughes Hughes' Reports, Kentucky Courts. Hume Hume's Decisions, Scotch Court of Session. Hume Com. or Hume 1 ij„„g.3 Commentaries on Criminal Law of Scotland. ur. Lt ) Humph Humphrey's Reports, Tennessee Supreme Court. Hun Hun's Reports, New York Supreme Court; New York Supreme Court Reports. Hunt. Land. & T. . . Hunter on Landlord and Tenant. Hunt. Rom. L. . . . Hunter on Roman Law. Hurlst. & C Hurlstone & Coltman's Reports, English Exchequer. Hurlst. & G Hurlstone & Gordon's Reports, English Exchequer ; Exchequer Reports. Hurlst. & N Hurlstone & Norman's Reports, English Exchequer. Hurlst & W Hurlstone & Walmsley's Reports, English Exchequer. Hutt Hutton's Reports, English Common Fleas. L J. C Irvine's Justiciary Cases, Scotch Justiciary Court. I. O. U I owe you. I. R. C. L Irish Common Law Reports. I. R. Eq. Irish Equity Reports. Idaho Idaho Reports, Idaho Territorial Courts. Ill Illinois Reports, Illinois Supreme Court. Imp. PI Impey's Pleader. Imp. Pr. C. P. . . . Impey's Practice in Common Pleas. Imp. Pr. K. B. . . . Impey's Practice in King's Bench. Imp. Sh Impey on Sheriffs and Coroners. In f. In fine ; at the end of a Law title or paragraph. In. pr In prindpio ; at the beginning of a law ; before the first para- graph. Ind Indiana Reports, Indiana Supreme Court. Inst. Institutes; when preceded by a number denoting a volume, the reference is to Coke's Institutes ; when followed by several numbers, the reference is to the Institutes of Justinian, and to the books, titles, and paragraphs into which that work is divided. Iowa Iowa Reports, Iowa Supreme Court. Ir. C. L. or Jr. L. N. a. Irish Common Law Reports. Ir. Ch. or Ir. Ch. N. s. Irish Chancery Reports. Ir. Eq Irish Equity Reports. Ir. L. .* Irish Law Reports. Ired Iredell's Law Reports, North Carolina Supreme Court. Ired. Eq Iredell's Equity Reports, North Carolina Supreme Court. Irvine or Irv. Just. . . Irvine's Justiciary Cases, Scotch Justiciary Court. USED m JURISPEUDENCE. xxiii J. J. Marsh J. J. Marshall's Reports, Kentucky Court of Appeals. J. Kel J. Kelyng's Reports, English King's Bench. J. & W Jacob & Walker's Reports, English Chancery. Jao. King James ; thus 1 Jac. I. signifies the first year of the reign of King James I. Jacob's Reports, English Chancery. Jac. Diet Jacobs' Law Dictionary. Jac. & W ' Jacob & Walker's Reports, English Chanopry. Jacks Jackson's Reports, Supreme Court of Georgia; Georgia Re- ports, vols. 46-57. Jarm. Wills .... Jarman on Wills. Jctus Jurisconsultus. Jebb Cr. Cas. . . . Jebb's Crown Cases, Irish Courts. Jebb & B ,Jebb & Bourke's Reports, Irish Queen's Bench. Jebb & S Jebb & Symes' Reports, Irish Queen's Bench. Jeff Jefferson's Reports, Virginia General Court. Jenk. or Jenk. Cent. . Jenkins' Reports, English Exchequer. Jenn Jennison's Reports, Michigan Supreme Court; Michigan Re- ports, vols. 14-18. "^"(n' Y^°'Cas*"^ ^°'!°'' 1 Jolinson's Cases, New York Supreme Court and Court of Errors. Johns. Ch Johnson's Reports, English Chancery. Johns. (Md.) Ch. . . Johnson's Reports, Maryland Chancery ; Maryland Chancery Reports. Johns. (N. T.) . . . Johnson's Reports, New York Supreme Court and Court of Er- rors. Johns. (N. Y.) Ch. . . Johnson's Reports, New York Chancery. Johns. & H Johnson & Heming's Reports, English Chancery. Jones (Ala.) .... Jones's Reports, Alabama Supreme Court; Alabama Reports, vols. 43-48. Jones, B. & W. . . . Jones, Barclay, & Whittelsey's Reports, Missouri Supreme Court ; Missouri Reports, vol. 31. Jones Bailm Jones on Bailments. Jones Ir Jones' Reports, Irish Exchequer. Jones (Mo.) .... Jones' Reports, Missouri Supreme Court; Missouri Reports, vols. 22-30. Jones (N. C.) . , . , Jones' Law Reports, North Carolina Supreme Court. Jones (N. C.) Eq. . . Jones' Equity Reports, North Carolina Supreme Court. Jones (Pa.) .... Jones' Reports, Pennsylvania Supreme Court; Pennsylvania State Reports, vols. 11, 12. Jones T. or 2 Jones . . T. Jones' Reports, English King's Bench and Common Pleas. Jones (U. C.) . . . . Jones' Reports, Upper Canada Common Pleas ; Upper Canada Common Pleas Reports. Jones W. or 1 Jones . W. Jones' Reports, English King's Bench and Common Pleas. Jones & C Jones & Carey's Reports, Irish Exchequer. Jones & La T. ... Jones & La Touehe's Reports, Irish Chancery. Jones & S Jones & Spencer's Reports, New York City Superior Court ; New York Superior Court Reports, vols. 33-44. Jud Book of Judgments, English Courts. Jur The Jurist. Jur. N. s The Jurist, New Series. Jur. Sc The Scotch Jurist, Scotch Court of Session Cases. Just. Inst Institutes of Justinian. K. B King's Bench. K. C King's Council. K. C. R Reports tempore King, English Chancery. K. & G. R. C. ... Keane & Grant's Registration Appeal Cases. K. & J Kay & Johnson's Reports, English Chancery. K. & Knapp & Ombler's Election Cases. Kames or Kam. Dec. . Karnes' Decisions, Scotch Court of Session. Kames Eluc Kames' Elucidations of tlie Law of Scotland. Kames Eq Kames on Principles of Equity. Kames Rem. Dec. . . Kames' Remarkable Decisions, Scotch Court of Session. Kames Sel. Dec. . . Kames' Select Decisions, Scotch Court of Session. Kames Tr Kames' Law Tracts. Kan. or Kans. . . «. Kansas Reports, Kansas Supreme Court. Kay Kay's Reports, English Cliancery. Kay & J Kay & Johnson's Reports, English Chancery. Keane & G. R. C. . . Keane & Grant's Registration Appeal Cases. Keb. or Keble . . . Keble's Reports, English King's Bench. xxiv TABLE OF ABBREVIATIONS Keb. J Keble on Justices of the Peace. Keb. Stat Keble's Statutes. Keen Keen's Reports, English Bolls Court. Keil. or Keilw. . . . Keilway's Heports, English King's Bench and Common Fleas. Kel. J. or 1 Kel. . . . J. Kelyng's Beports, English King's Bench. Kel. W. or 2 Kel. . . W. Kelynge's Reports, English Chancery. Kelly Kelly's Beports, Georgia Supreme Court; Georgia Beports, vols. 1-&. Kelly Ann Kelly on Annuities. Kelly Us Kelly on Usury. Kelly & C Kelly & Cobb's Beports, Georgia Supreme Court; Georgia Be- ports, vols. 4, 6. Kenn. Gloss Kennett's Glossary. Kenn. Imp Kennett on Impropriations. Kent Com Kent's Commentaries. Keny Kenyon's Notes, English King's Bench. Kern Kernan's Beports, Mew York Court of Appeals ; New York Be- ports, vols. 11-14. Kerr Ac. ..... Kerr on Actions at: Law. . Kerr Ane. L Kerr on Ancient Lights. Kerr Disc Kerr on Discovery. Kerr Fr Kerr on Fraud and Mistake. Kerr(Ind.) .... Kerr's Reports, Indiana Supreme Court ; Indiana Beports, vols. 18-22. Kerr Inj Kerr on Injunctions. Kerr (M. B.) .... Kerr's Reports, New Brunswick Supreme Court. Kerr Bee Kerr on Receivers. Keyes Keyes' Beports, New York Court of Appeals. . Kilk Kilkerran's Decisions, Scotch Court of Session. King King's Beports, Louisiana Supreme Court ; Louisiana Annual Beportsj vols. 5, 6. Kirby Kirby's Beports, Connecticut Superior Court. Kit Kitchin on Courts. Kq. or Knapp ... Knapp's Beports, .English Privy Council. Kn. & 0. or Knapp & 0. Knapp & Ombler's Election Cases. Knowles Knowles's Beports, Bhode Island Supreme Court; Bhode Is- land Beports, vol. 3. Ky. Dec Sneed's Kentucky Decisions, Kentucky Court of Appeals. Kyd Aw Kyd on Awards. Kyd Corp. Kyd on Corporations. L Law. Liber. L. G. . . . . . . . Lord Chancellor. L. C. B Lord Chief Baron. L. C. C. C Lower Canada Civil Code. L. C. C. P. . . . . Lower Canada Civil Procedure. L. C. G Toronto Local Courts' Gazette. L. C. J Lord Chief Justice. Lower Canada Jurist. L. C. B -Lower Canada Beports. L. H. C Lord High Chancellor. L. I. L Lincoln's Inn Library. L.J House of Lords' Journal. Lords Justices' Court. L. J. or L. J. o. s. . . Law Journal Beports, in all the English Courts. L. J. Adm Law Journal, New Series, English Admiralty. L. J. Bankr Law Journal, New Series, English Bankruptcy. L. J. C. P Law Journal, New Series, English Common Pleas. L. J. Ch Law Journal, New Series, English Chancery. L. J. Ece Law Journal, New Series, English Ecclesiastical Courts. L. J. Exch Law Journal, New Series, English Exchequer. L. J. H. L Law Journal, New Series, English House of Lords. Mag. Cas! °' . . ' J ^^'^ J<"i™al. New Series, English Magistrates' Cases. L. J. Mat. Cag. . . ; Law Journal, New Series, English Divorce and Matrimonial Causes. L. J. P. or L. J. Prob.". Law Journal, New Series, English Probate. L. J. P. C Law Journal, New Series, English Privy Council. L. J. Q. B Law Journal, New Series, English Queen's Bench. L. L Law Latin. L. M. & P Lowndes, Maxwell, & Pollock's Beports, English Bail Court. L. Mag > . Law Magazine. USED IN JURISPRUDENCE. L. Mag. & L. R. h. Mag. & Rev. L. 0. . , L. P. B. , L. P. C. . L.R.. . . L. R. A. & E. L. R. App. Cas. L. R. C. C. L. R, C. P. L. R. C. P. D, L. R. Ch. . L. R. Ch. D. L. R. Eq. . L.R.EX. orL. L. R. Ex. D. L. R. H. L. L. R. H. L. Sc, h.n. MiscD, L. R. P. C. L. R. P. & D. L. R. Q. B. L. R. Q. B. D L. T. . . . L.T.N. 3. or] N. 3. . . L. & C. C. C. L. & G. t. Plunk, L. & M. . . L. & T. . . L. & Welsb. Welsh. Mer. La. . . R. . T, Exoh, '. Rep. or L. Cas. . La. Ann LalorSupp. Hill&D. Lamb, or Lamb. J. P. Lane . . . Lans. . . Lat. or Latch Lathrop . . Law Chron. Law Forms Law Jour. Law Jour. Adm, Law Jour. Bankr. Law Jour. C. P. Law Jour. Ch. Law Jour. Ecc. Law Jour. Exch. Law Jour H. L. Law Jour. M. C. or Law Jour. Mag. Ca». . . Law Jour. Mat. Cas. . Law Jour. P. or Prob. . Law Jour. P. C. . . . Law Jour. Q. B^ . ■ . Law Lib Law News Law Magazine and Law Review. Law Magazine and Review. Legal Observer. Lawrence's Paper Book ; compare A. P. B. Lord of the i'rivy Council. Law Recorder, Reports in all the Irish Courts. Law Reporter. Law Reports. Law Review. Law Times Reports. Law Reports, English Admiralty and Ecclesiastical. Law lieports, English Appeal Cases. Law Reports, English Crowo Cases Reserved. Law Reports, English Common Pleas. Law Reports, Common Pleas Division English Supreme Court. of Judicature. Law Reports, English Chancery Appeal Cases. Law Reports, Chancery Division English Supreme Court of Judicature. Law Reports, English Equity Cases. Law Reports, English Exchequer. Law Reports, Exchequer Division English Supreme Court of Judicature. Law Reports, English and Irish Appeal Cases, House of Lords. Law Reports, Scotch and Divorce Appeal Cases, House of Lords. Law Reports, Miscellaneous Division, English Supreme Court of Judicature. Law Reports, English Privy Council Appeal Cases. Law Reports, English Probate and Divorce Cases. Law Reports, English Queen's Bench. Law Reports, Queen's Bench Division English Supreme Court of Judicature. Law Times, Case's in all the English Courts. ) Law Times Reports, New Series, English Courts, with Irish and ) Scotch Cases. Leigh & Cave's Crown Cases, English Courts. Lloyd & Goold's Cases tempore Plunkett, Irish Chancery. Lowndes, Maxwell, & Pollock's Reports, English Bail Court. Longfield & Townsend's Reports, English Exchequer. > Lloyd & Welsby's Mercantile Cases, English Courts. Lane's Reports, English Exchequer. Louisiana. Louisiana Re- ports, Supreme Court. Louisiana Annual Reports, Louisiana Supreme Court. Lalor's Supplement to Hill & Denio's Reports, New York Su- preme Court and Court of Appeals ; Hill & Denio's Supple- ment. Lambard's Eirenareha, Or Justice of the Peace. Lane's Reports, English Exchequer. Lansing's Reports, New York Supreme Court; New York Su- preme Court Reports. Latch's Reports, English King's Bench. Lathrop's Reports, Massachusetts Supreme Court; Massachu- setts Reports, vols. 115-121. Law Clironicle. Law's Forms of Ecclesiastical Law. Law Journal, Reports in all the English Courts. Law Journal, New Series, English Admiralty. Law Journal, New Series, English Bankruptcy Law Journal, New Series, English Common Pleas. Law Journal, New Series, English Chancery. Law Journal, New Series, English Ecclesiastical Courts. Law Journal, New Series, English Exchequer. Law Journal, New Series, English House of Lords. > Law Journal, New Series, English Magistrates' Cases. Law Journal, New Series, English Divorce and Matrimonial Cases. Law Journal, New Series, English Probate. Law Journal, New Series, English Privy Council. Law Journal, New Series, EngUsh Queen's Bench. Law Library. St. Louis Law News. xsn TABLE OF ABBREVIATIONS Law Rec. . . . Law Rep. . . . Law Rep. A. & E, Law Rep. App. Cae. Law Rep. C. C. . Law Rep. C. P. . Law Rep. C. P. D. Law Rep. Ch. Law Rep. Ch. D. Law Rep. Eq. Law Rep. Ex. Law Rep. Ex. D. Law Rep. H. L. . Law Rep. H. L. Sc. Law Rep. Misc. D. Law Rep. P. C. . Law Rep. P. & D. Law Rep. Q. B. . Law Rep. Q. B. D. Law Repos. . Law Rev. Qu. Law Stud. Magi Law Times . Law Times, n.s. or Law Times Rep, Lawes C. . Lawes PI. . Lawrence . Ld. Ken. . Ld. Raym. . Leach or Leach Lead. Caa. Eq. Lee or Lee Cas, Lee Ab. . , Lee Bankr. Lee Cal. Lee Cap. . Lee Cas. t. H. Leg.Chr. . Leg. Exam. Leg. Exch. . Leg. Gaz. . Leg. Gaz. Rep. Leg. Inq. . Leg. Int. . Leg. Obs. . Leg. Op. . Leg. Rep. . Leg. Rev. . Leigh . . Leigli N. P. Leigh & C. . Leigh & D. Conv, Leon. Lester . Lester & B. Lev. . . . Lew. Ap. . Lew. Cr. C. Lew. (Nev.) Lew. Perp. . Lex Merc. . Law Recorder, Reports in all the Irish Conrts. Law Reporter. Law Reports. Law Reports, English Admiralty and Ecclesiastical. Law Reports, English Appeal Cases. Law Reports, English Crown Cases Reserved. Law Reports, English Common Pleas. Law Reports, Common Pleas Division English Supreme Court of Judicature. Law Reports, English Chancery Appeal Cases. Law Reports, Chancery Division English Supreme Court of Judicature. Law Reports, English Equity Cases. Law Reports, English Exchequerj Law Reports, Exchequer Division English Supreme Court of Judicature. Law Reports, English and Irish Appeal Cases, House of Lords. Law Reports, Scotch and Divorce Appeal Cases, House of Lords. Law Reports, Miscellaneous Division, English Supreme Court of Judicature. Law Reports, English Privy Council Appeal Cases. Law Reports, EngUsh Probate and Divorce Cases. Law Reports, English Queen's Bench. Law Reports,' Queen's Bench Division English Supreme Court of Judicature. Carolina Law Repository, North Carolina Supreme Court. Law Review Quarterly. Law Students' Magazine. Law Times, Cases in all the English Courts. 1 Law Times Reports, New Series, English 'Courts, with Irish and J Scotch Cases. Lawes on Charter Parties. Lawes on Pleadings. Lawrence's Reports, Ohio Supreme Court; Ohio Reports, vol. 20. Kenyon's Notes, English King's Bench. Lord Raymond's Reports, English King's Bench. Leach's Crown Cases, English Courts. White & Tudor's. Leading Cases in Equity. Lee's Cases, English Ecclesiastical Courts. Lee on Abstracts of Title. Lee on Bankruptcy. Lee's Reports, California Supreme Court ; California Reports, vols. 9-12. Lee on Captures. Cases tempore Hardwicke, English King's Bench. Legal Chronicle, Pennsylvania. Legal Examiner, London. Legal Exchange, Iowa. Legal Gazette, Pennsylvania. Legal Gazette Reports, Pennsylvania Courts. Legal Inquirer, London. Legal Intelligencer, Pennsylvania. Legal Observer, London. Legal Opinion, Pennsylvania. Legal Reporter, Irish Courts. Legal Review, London. Leigh's Reports, Virginia Court of Appeals and General Court. Leigh's Nisi Prius. Leigh & Cave's Crown Cases, English Courts. Leigh & Dalzell ou Conversion. Leonard's Reports, English King's Bench. Lester's Reports, Georgia Supreme Court; Georgia Reports. vols. 81, 32. .61-. Lester & Butler's Reports, Georgia Supreme Court; Georgia Reports, vol. 33. Levlnz' Reports, English King's Bench. Lewin on Apportionment. , Lewin's Crown Cases, English Courts. Lewis's Reports, Nevada Supreme Court ; Nevada Reports, vol. 1. Lewis on Perpetuity. . Lex Mercatoria. USED IN" JDKISPRUDENCE. xxvii Ley Ley's Reports, English Court of Wards and other Courts. Lib Liber; book. Lib. Ass Liber Assisaruni ; Book of Assizes ; part 6 of the Year Books. Lib. Feud Liber Feudorutn ; Consuetudines Feudorum, at end of Corpus Juris Civilis. Lib. Intr Liber Intrationum ; Old Book of Entries. Lib. PI Liber Placitandl. Lib. Eeg Register Book. Lil Lilly's Reports, English Assizes. Lil. Abr Lilly's Abridgment ; Lilly's Practical Register. Lind. Part Lindley on Partnership. Lind. Prov Lyndwood's Provinciales. Lit. ..;.... Littleton's Reports, English Common Pleas and Exchequer. Lit. Ten Littleton's Tenures. Litt. (Ky.) or Littell . Littell's Reports, Kentucky Court of Appeals. ■^'(Ky^f Se?.''ca" ''^'"l } ^•"«"'s Selected Cases, Kentucky Court of Appeals. Liv. Jud. Op Livingston's Judicial Opinions, New York City Mayor's Court. LI Leges; laws. LI. Ch. St Lloyd's Chitty's Statutes. LI. Comp Lloyd on Law of Compensation. LI. & G. t. S Lloyd & Goold's Reports tempore Sugden, Irish Chancery. LI. & G. t. P. . . . . Lloyd & Goold's Reports tempore Plunkett, Irish Chancery. ■"^'of ^& W^'mbII^m; [ ^^°^^ ^ Welsby's Mercantile Cases, English Courts. Loc. Ct. Gaz Local Courts Gazette, Toronto. Lock. Rev. Cas. . . . Lockwood's Reversed Cases. LoSt Lofft's Reports, English King's Bench. Lond. Jur London Jurist. Lond. L. M London Law Magazine. Long Quinto .... Year Book, part 10. Long Sales .... Long on Sales. Longf. & T Longfield & Townsend's Reports, Irish Exchequer. Lor. Inst Lorimer's Institutes. Love. Wills .... Lovelass on Wills. Low Lowell's Reports, United States District Court. Low. C Lower Canada Reports. Low. C. Jur Lower Canada Jurist. Lowndes Av Lowndes on Average. Lowndes Col Lowndes on Collisions. Lowndes, M. & P. . . Lowndes, Maxwell, & Pollock's Reports, English Bail Court. Luc Lucas' Cases in Law and Equity, English Courts ; Modern Re- ports, vol. 10. Lud. El. Cas Luder's Election Cases. Lud. & Jenk. .... Ludlow & Jenkyns on Trademarks. Ludden Ludden's Reports, Maine Supreme Court: Maine Reports, vols. 43, 44. Lum. An ' . Lumley on Annuities. Lum. Cas Lumley's Poor Law Cases. Lund Pat Lund on Patents. Lush, or Lush. Adm. . Lushington's Admiralty Reports, English Admiralty. Lush. P. L Lushington on Prize Law. Lutw Lutwyche's Reports, English Common Pleas ; Lutwyche's Cases tempore Queen Anne, English Courts ; Modern Reports, vol. 11. Lutw. R. C. . . . ■. Lutwyche's Registration Cases. Lynd. Prov Lyndwood's Provinciales. M Queen Mary; thus 1 M. signifies the first year of the reign of Queen Mary. Michaelmas Term. Morisou's Dictionary of Decisions, Scotch Court of Session. M. C Magistrates' Cases. Moody's Crown Cases, English Courts. • Montague, Deacon, & De Gex's Reports, English Bankruptcy. Manning, Granger, & Scott's Reports, English Common Pleas ; Common Bench Reports, vols. 1-8. Master of the Rolls. More's Notes on Stair's Institutes. Michaelmas Term. Montagu & Ayr's Reports, English Bankruptcy Court. M. C. C. M. D. & D. M. G. & S M. R. . M. St. . M. T. . M. & Ayr rxviii TABLE OF ABBREVIATIONS M. & Ayr B. L. . . . Montagu & Ayr on Bankrupt Law. M. & B Montagu & Bligh's Reports, English Bankruptcy. M. & C Mylne & Craig's Reports, English Chancery. M. & G. Manning & Granger's Reports, English Common Pleas. M. & Gord Macnaghten & Gordon's Reports, English Common Pleas. M. & M Moody & Malkin's Nisi Prius Cases, English Courts. M. & MacA Moody & MacArthur's Eeports, English Bankruptcy. M. & P Moore & Payne's Reports, English Common Pleas and Ex- chequer. M. & R Manning & Ryland's Eeports, English Kingr's Bench. M. & R. M. C. . . . Manning & Ryland's Magistrates' Cases, English King's Bench. M. & Rob Moody & Robinson's Nisi Prius Cases, English Courts. M. & S. Maude & Selwyn's Reports, English King's Bench. M. & Sc Moore & Scott's Reports, English Common Pleas. M. & W Meeson & Welsby's Reports, English Exchequer. Maccl Cases in Law and Equity tempore Macclesfield ; Modern Re- ports, vol. 10. Macf. Macfarlane's Reports, Scotch Jury Court. Mack. Civ. L. . . . Mackeldy on Civil Law. Mack. Cr. L Mackenzie on Criminal Law of Scotland. Mack. Inst Mackenzie's Institutes of the Law of Scotland. Mack. Obs Mackenzie's Observations on Abts of Parliament. Mack. Rom. L. . . . Mackenzie on Roman Law. Macl. Dec Maclaurin's Decisions, Scotch Courts. Macl. Ship. .... Maclachlan on Shipping. Macl. & R. or M'L. & R. Maclean & Robinson's Reports, English House of Lords, Appeals from Scotland. Macn Macnaghten's Reports, Indian Courts. Macn. F F. Macnaghten's Reports, Indian Courts. Macn. Null Macnamara on Nullities and Irregularities. Macn. & G Macnaghten & Gordon's Reports, English Chancery. Macph Macpherson's Cases, Scotch Court of Session. Macph. Inf. . . ... Macpherson on Infancy. Macq. H. L Cas. . . Macqueen's House of Lords Cases, Appeals from Scotland. Macq. H. & W. , . . Macqueen on Husband and Wife. Macq. M. & D. . . . Macqueen on Marriage and Divorce. Mad. or Madd. . , . Maddock's Reports, English Chancery. Mad. Ch Maddock's Chancery Practice. Mad. Exch Madox's History of the Exchequer. Mad. Form Madox's Formulae Anglicanum. Mad. H. Ct. R. . . . Madras High Court Reports. Mad. Jar. Madras Jurist. Mad. S. D. R. ... Madras Sadder Dewarry Reports. Mad. Sel. D Madras Select Decrees. Mag The Magistrate. Mag. Cas. . . . . . Magistrates' Cases. Mag. Char Magna Charta. Mag. (Md.) .... Magruder's Reports, Maryland Supreme Court; Maryland Ee- ports, vols. 1, 2. Maine Maine Reports, Supreme Court. Maine Anc. Law . . Maine on Ancient Law. Maine Vil. Com. . . Maine on Village Communities. Mai. Malyne's Lex Mercatoria. Mall. Ent Mallory's Modern Entries. Man. Dem Mansel on Demurrer. Man. G. & S Manning, Granger, & Scott's Eeports, English Common Pleas ; Common Bench Reports, vols. 1-8. Man. & G Manning & Granger's Reports, English Common Pleas. Man. & R. . . . . . Manning & Ryland's Eeports, English King's Bench. Man. & R. Mag. Cas. . Manning & Ryland's Magistrates' Cases, English King's Bench. Mann. Mich, or Man- ) Manning's Reports, Michigan Supreme Court; Michigan Re- ning ) ports, vol. 1. Manw , Manwood's Forest Laws. Mar. ....... March's Reports, English King's Bench. Mar. Br March's Brooke's New Cases. Marr. or Marr. Adm. . Marriott's Reports, English Admiralty. Marsh Marshall's Reports, English Common Pleas. Marsh. Dec Brockenborough's Reports, Marshall's United States Circuit Court Decisions. ^j"j.' Marsh, '^.^"l °\ ] '^■^- Marshall's Reports, Kentucky Court of Appeals. USED m JURISPRUDENCE. xxix ^Ma^sh^^' °^ '*" ^'l-^- ^- Marshall's Reports, Kentucky Court of Appeals. Mart. (Ga.) .... Martin's Reports, Georgia Supreme Court; Georgia Reports, vols. 21-29. Mart. (La.) .... Martin's Reports, Louisiana Supreme Court. Mart. (La.) N. s. . . . Martin's Reports, New Series, Louisiana Supreme Court. Mart. (N. C.) ... Martin's Reports, North Carolina Supreme Court. Mart. & Y Martin & Yerger's Reports, Tennessee Supreme Court. MarT. At Marvin on General Average. Marv. Leg. Bibl. . . . Marvin's Legal Bibliography. Marv. Wr. & S. . . . Marvin on Wreck and Salvage. Mas, Mason's Reports, United States Circuit Court. Mass Massachusetts Reports, Massachusetts Supreme Court. Math. Ev Mathews on Presumptive Evidence. Mats Matson's Reports, Connecticut Supreme Court of Errors ; Con- necticut Reports, vols. 22-24. Matt, or Matth. (W. Matthew's Reports, West Virginia Supreme Court; West Vir- Va. ) ginia Reports, vol. 6. Mau. & Pol. Sh. . . . Maude & Pollock on Shipping. Mau. & Sel Maule & Selwyn's Reports, English King's Bench. May Fr. Conv. . . . May on Fraudulent Conveyances. May P. L May on Parliamentary Law. Mayne Dam Mayne on Damages. McAU McAllister's Reports, United States District Court. McArth McArthur's Reports, District of Columbia Courts. McCahon McCahon's Reports, United States District Court. McCart McCarter's Reports, New Jersey Chancery and Court of Errors and Appeals ; New Jersey Equity Reports, vols. 14, 15. McClel McCleland's Reports, English Exchequer. McClel. & Y McCleland & Younge's Reports, English Exchequer. McCook McCook's Reports, Ohio Supreme Court ; Oliio State Reports, vol. 1. MeCord or McCord (S. i McCord's Law Reports, South Carolina Constitutional Court CJ J and Court of Appeals. ^{S C )'ch°'^ McCord | jigCord's Chancery Reports, South Carolina Court of Appeals. McCork. or McCork. (N. i McCorkle's Reports, North Carolina Supreme Court ; North C.) ) Carolina Reports, vol. 65. MoCull. Diet McCullough's Commercial Dictionary. McLean McLean's Reports, United States Circuit Court. n ) I McMuUan's Law Reports, South CaroUna Court of Appeals. Mull (S C ) Ea ( McMuUan's Equity Reports, South Carolina Court of Appeals. McNal. Ev McNally on Evidence. Md Maryland. Maryland Reports, Court of Appeals. Md. Ch Maryland Chancery Decisions, Maryland High Court of Chancery. Me Maine. Maine Reports, Supreme Court. Meddaugh Meddaugh's Reports, Michigan Supreme Court ; Michigan Reports, vol. 13. Mees. & W Meeson & Welsby's Reports, English Exchequer. Meigs Meigs' Reports, Tennessee Supreme Court. Mer. or Meriv. . . . Merivale's Reports, English Chancery. Mete. (Ky.) .... Metcalfe's Reports, Kentucky Court of Appeals. Mete. (Mass.) .... Metcalf's Reports, Massachusetts Supreme Court ; Massachu- setts Reports, vols. 42-54. Mich Michigan. Michigan Reports, Supreme Court. Mich. N. P Michigan Nisi Prius Cases. Mich. T Michaelmas Term. Midd. Sitt Middlesex Sittings at Nisi Prius. Miles or Miles (Pa.) . Miles' Reports, Philadelphia District Court. MUl Const, or Mill (S. ) jjjjj,^ Reports, South Carolina Constitutional Court. Mill. Dec Miller's Decisions, United States Circuit Court ; Woolworth's Reports. Mill. Eq. Mort. . . . Miller on Equitable Mortgages. Mill. (La.) .... Miller's Reports, Louisiana Supreme Court ; Louisiana Reports, vols. 1-5. Mill. (Md.) Miller's Reports, Maryland Court of Appeals ; Maryland Re- ports, vols. 3-18. xxx TABLE OF ABBREVIATIONS Milw. or Milw. Ecc. . Milward's Reports, Irish Prerogative Court. Minn Minnesota. Minnesota Reports, Supreme Court. Minor or Min. (Ala.) . Minor's Reports, Alabama Supreme Court. Mirr. J Mirrour of Justices. Miss Mississippi. Mississippi ■ Reports, High Court of Errors and Appeals and Supreme Court. Mltf. Mitford on Chancery Pleading. Mo Moore's Reports, English Courts. Missouri. Missouri Reports, Supreme Court. Mo. L. Mag Monthly Law Magazine. Mod Modern Reports, English Courts. Mod. Cas Modern Reports, vols. 2, 6, 8, 9. Mod. Cas. L. & Eq. . . Modern Reports, vols. 8, 9. Mod. Ent Modern Entries. Mol MoUoy's Reports, Irish Chancery. Mol. de J. M MoUoy de Jure Maritimo. Mon. T Montana Territory. Montana Territorial Reports. Monr. or Monr. T. B. . T. B. Monroe's Reports, Kentucky Court of Appeals. Monr. B B. Monroe's Reports, Kentucky Court of Appeals. Mont Montagu's Reports, English Bankruptcy. Mont. D. & DeG. . . Montagu, Deacon, & De Gex's Reports, English Bankruptcy. Mont. Set Off . . . Montagu on Set OfE. Mont. & A Montagu & Ayrton's Reports, English Bankruptcy. Mont. & B Montagu & Bligh's Reports, English Bankruptcy. Mont. & C Montagu & Chitty's Reports, English Bankruptcy. Mont. & Mc Montagu & McArthur's Reports, English Bankruptcy. Moo Moore's Reports, English Courts. Moo. C. C Moody's Crown Cases, English Courts. Moo. C. P. or Moo. J. 1 ,, , t. ,. -r- ,■ v. r^ T.1 jj _ } Moore s Reports, English Common Pleas. Moo. I. A Moore's Indian Appeals. Moo. P. C. C. . . . Moore's Privy Council Cases, English Privy Council. Moo. P. C. C. N. s. . . Moore's Privy Council Cases, New Series, English Privy Council. Moo. Tr Moore's Trials, Divorce Cases. Moo. & M Moody & Malkin's Nisi Prius Cases, English Courts. Moo. & P Moore & Payne's Reports, English Common Pleas. Moo. & R Moody & Robinson's Nisi Prius Cases, English Courts. Moo. & Sc Moore & Scott's Reports, English Common Pleas. Moore & W Moore & Walker's Reports, 'Texas Supreme Court ; Texas Re- ports, vols. 22-24. Mor. or Morr. . . . Morison's Dictionary of Decisions, Scotch Court of Session. More St More's Notes on Stair's Institutions. Morr Morris's Reports, Iowa Supreme Court. Morr. (Cal.) Morris's Reports, California Supreme Court; California Re- ports, vol. 5. , Morr. (Miss.) .... Morris's Reports, Mississippi High Court of Errors and Ap- peals ; Mississippi Reports, vols. 43-48. Mos Moseley's Reports, English Chancery. Mozley & W. ... Mozley & Whiteley's Law Dictionary. Munf Munford's Reports, Virginia Court of Appeals. Murph Murpliey's Reports, North Carolina Supreme Court. Murph. & H Murphy & Hurlstone's Reports, English Exchequer. Murr Murray's Reports, Scotch Jury Court. Myl. & C Mylne & Craig's Reports, English Chancery. Myl. & K Mylne & Keen's Reports, English Chancery. N Novellas; the Novels, or New Constitutions. N. B Nota Bene. New Brunswick. New Brunswick Reports. N. B. R National Bankruptcy Register. N. Benl New Benloe, English King's Bench; Anonymous Reports at end of Benloe's Reports. N. C Notes of Cases, English Ecclesiastical and Maritime Courts. North Carolina. North Carolina Reports, Supreme Court. N. Chip N. Chipman's Reports, Vermont Supreme Court. N. E New Edition. N. F Newfoundland. Newfoundland Reports. N. H New Hampshire. New Hampshu-e Reports, Supreme Court. N. J New Jersey. New Jersey Reports. USED IN JURISPRUDENCE. xxii N. J. Eq. or N. J. Ch. . New Jersej' Equity Reports, Chancery and Court of Errors and Appeals. N. J. L New Jersey Law Reports, Supreme Court and Court of Errors and Appeals. N. L Nelson's Lutwyche's Reports, English Common Pleas ; Lut- wyche's Reports. N. P Nisi Prius. Nova Placita. Notary Public. N. P. C Nisi Prius Cases. N. R New Reports, English Common Pleas ; Bosanquet & Puller's Reports. N. S Nova Scotia. New Series. N. Y New York. New York Reports, Court of Appeals. N. Y. Leg. Obs. . . . New York Legal Observer. N. Y. Super. Ct. . . . New York Superior Court Reports, New York City Superior Court. N. Y. Supr. Ct. . . . New York Supreme Court Reports. Nap ton . ..... Napton's Reports, Missouri Supreme Court; Missouri Reports, vol. 4. Nels Nelson's Reports, English Chancery. Nev Nevada. Nevada Reports, Supreme Court. Nev. & M Neville & Manning's Reports, English icing's Bench. Nev, & P Neville & Perry's Reports, English King's Bench. New Mag. Cas. . . . New Magistrates' Cases, English Courts. New Pr. Cas New Practice Cases, English Courts. Kew Rep New Reports, English Common Pleas ; Bosanquet & Puller's Reports. New Reports in all the English Courts. New Sess. Cas. . . . New Sessions Cases, English Courts ; Carrow, Hamerton, & Al- len's Reports. New York City H. Rec. New York City Hall Recorder. Newb. or Newb. Adm. Newberry's Admiralty Reports, United States District Courts. Newf. Newfoundland Reports. Newl. Ch Newland on Chancery Practice. Newl. Cont Newland on Contracts. Nich. H. & C NichoU, Hare, & Carrow's Railway Cases, English Courts. No. Cas Notes of Cases, English Ecclesiastical and Maritime Courts. No. N Novae Narrationes. Nol. or Nol. Sett. . . Nolan's Settlement Cases. Nol. P. L Nolan on Poor Laws. North Northington's Reports, English Chancery. Nott & H Nott & Huntington's Reports, United States Court of Claims. Nott & M Nott & MoCord's Reports, South Carolina Constitutional Court. Nov Novelise; the -No vels, or New Constitutions. Nov. So Nova Scotia. Noy Noy's Reports, English Courts. Noy Max Noy's Maxims. Ordonnance. Ohio. Ohio Reports, Supreme Court. 0. Benl Old Benloe's Reports, English Courts ; Benloe's Reports. O. Bridg Orlando Bridgman's Reports, English Common Pleas. 0. N. B Old Natura Brevium. 0. St Ohio State Reports, Supreme Court. Off. Brev OfBcina Brevium. Off. Minn Officer's Reports, Minnesota Supreme Court ; Minnesota Re- ports, vols. 1-9. Ogd Ogden's Reports, Louisiana Supreme Court; Louisiana Annual Reports, vols. 12-15. Ohio Ohio Reports, Supreme Court. Ohio St Ohio State Reports, Supreme Court. 01c. or 01c. Adm. . . Olcott's Admiralty Reports, United States District Cotirt. Old Oldright's Reports, Nova Scotia Supreme Court. Oliver, B. & L. . . . Oliver, Beavan, & Lefroy's Reports ; Railway and Canal Cases, vols. 5-7. - O'Mal. & H O'Malley & Hardcastle's Election Cases. Onsl. N. P Onslow's Nisi Prius. Op. Att.-Gen Opinions of Attorneys-General of the United States. Ord. Ch Orders in Chancery. Ord. Cla Orders of Lord Clarendon. Oreg Oregon. Oregon Reports, Supreme Court. Orf. M. L Orfila Medicine Legale. Orl. Bridg Orlando Bridgman's Reports, English Common Pleas. xxxii TABLE OF ABBREVIATIONS Orm Ormond's Reports, Alabama Supreme Court ; Alabama Re- ports, vols. 12-15. Ought Oughton's Ordo Judiciorum. Overt Overton's Reports, Tennessee Courts. Ow. or Owen .... Owen's Reports, English King's Bench and Common Pleas. P Easter Term. P. C Privy Council. Probate Court. Cases in Parliament. Pleas of the Crown. Practice Cases. Precedents in Chancery. Penal Code. Political Code. P. C. C Privy Council Cases. P. L Public Laws. Pamphlet Laws. P. L. C Poor Law Commissioners. P. R Parliamentary Reports. P. R. C. P Practical Register in Chancery. P. R. Ch Practical Register in Common Pleas. P. W. or P. Wms. . . Peere 'Williams's Reports, English Chancery. P. & D Perry & Davison's Reports, English Queen's Bench. P. & K Perry & Knapp's Election Cases. Pa Pennsylvania. Pennsylvania Reports, Supreme Court. ^^Gaz ^ °^ ^* ^^^ [ Pennsylvania Legal Gazette Reports, Pennsylvania Courts. a. . J . or fa. aw ( Pennsylvania Law Journal Reports, Pennsylvania Courts. Page Div Page on Divorce. Paige or Paige Ch. . . Paige's Reports, New York Chancery. Paine Paine's Reports, United States Circuit Court. Pal. or Palm. . . . Palmer's Reports, English Courts. Pal. Ag. or Paley Ag. . Paley on Agency. Papy Papy's Reports, Florida Supreme Court ; Plorida Reports, vols. 5-8. Park Parker's Reports, English Exchequer. "^Tn y^'^Cr °' ^^^ I I'arker's Criminal Reports, New York Courts. Park Ins Park on Insurance. or Pars ^pl Cas i ^^'^8°"'^ Select Cases in Equity, Pennsylvania Common Pleas. Pars. Bills & N. . . . Parsons on Bills and Notes. Pars. Cont Parsons on Contracts. Pars.'Partn Parsons on Partnership. Pars. Wills Parsons on Wills. Pas. or Pas. T. . . . Easter Term. Pasch Paschal's Reports, Texas Supreme Court: Texas Reports, vols. 28-31. Pat. App. Cas. or Pat. ) Paton's Reports, English House of Lords, Appeals from Scot- H. L. Sc J land; Craigie, Stewart, & Paton's Reports. Patton & H Patton & Heath's Reports, Virginia Special Court of Appeals. Peake or Peake N. P. . Peake's Nisi Prius Cases, English Courts. Peake Add. Cas. . . Peake's Additional Cases, English Courts. Peake Bv Peake on Evidence. Pearce or Pearce Cr. ) Pearce's Crown Cases, English Courts ; Dearsly's Crown Cases Cas ) Reserved; Denison's Crown Cases Reserved, vol. 2. Peck (111.) Peek's Reports, lUinois Supreme Court; Illinois Reports, vols. 11-38. Peck (Tenn.) .... Peck's Reports, Tennessee Supreme Court. Peckw. El. Cas. . . . Peckwell's Election Cases. ^^wtrnms' "^ ^^"^. \ ^^^""^ Williams' Reports, English Chancery. Pen. or Penn. (N. J.) . Pennington's Reports, New Jersey Supreme Court ; New Jer- sey Law Reports, vols. 2, 3. Penn Pennsylvania. Pennsylvania Reports, Supreme Court. Penn. Law Jour. . . Pennsylvania Law Journal Reports, Pennsylvania Courts. Penn. St Pennsylvania State Reports, Pennsylvania Supreme Court. Penr. & W Penrose & Watts' Reports, Pennsylvania Supreme Court; Pennsylvania Reports, vols. 2, 3. Perk, or Perk. Prof. Bk. Perkins' Profitable Book. Perk. Conv Perkins on Conveyances. Perry & D Perry & Davison's Reports, English Queen's Bench. Perry & K Perry & Knapp's Election Cases. Pet Peters' Reports, United States Supreme Court. USED m JURISPRUDENCE. xxxiii Pet. Adra Peters' Admiralty Reports, United States District Court. Pet. C. C Peters' Circuit Court Reports, United States Circuit Court. Petersd. Abr. .... Petersdorf s Abridgment. Ph Phillips' Reports, English Chancery. Ph. El. Cas. . . Phillipps' Election Cases. Ph. St. Tr Phillipps' State Trials. Phila Philadelphia Reports, Pennsylvania Courts. Phill. Ev Phillipps on Evidence. Phillim Phillimore's Reports, English Ecclesiastical Courts ; Lee's Cases. Phillira. Dom. . . . Phillimore on Domicil. Phillim. Ecc. L. . . . Phillimore on Ecclesiastical Law. Phillim. Ev Phillimore on Evidence. Phillim. Int. L. . . . Phillimore on International Law. Phillim. Rom. L. . . Phillimore on Roman Law. Phillipps El. Cas. . . Phillipps' Election Cases. Phillipps Ev Phillipps on Evidence. PhiUipps St. Tr. . . Phillipps' State Trials. Phillips PhiUips' Reports, English Chancery. Phillips (N. C.) Eq. . Phillips' Equity Reports, North Carolina Supreme Court. Phillips (N. C.) L. . . Phillips' Law Reports, North Carolina Supreme Court. ■ Pick Pickering's Reports, Massachusetts Supreme Court; Massachu- setts Reports, vols. 18-41. Pierce Railr. L. . . . Pierce on Railroad Law. Pig Pigott on Recoveries. Pig. & R Pigott & Rodwell's Election Cases. Pike Pike's Reports, Arkansas Supreme Court; Arkansas Reports, vols. 1-5. Pinn Pinney's Reports, Wisconsin Supreme Court. Pitm. Pitman on Suretyship. Pittsb. Rep Pittsburgh Legal Journal Reports, Pennsylvania Courts. PI. or Pla Placita. PI. or Plowd Plowden's Commentaries or Reports, English Courts. PI. U Plowden on Usury. Piatt Gov Piatt on Covenants. Piatt Leas Piatt on Leases. Pol PoUexfen's Reports, English Courts. Poph Popham's Reports, English Courts. Port, or Port. (Ala.) . Porter's Reports, Alabama Supreme Court. Port. (Ind.) .... Porter's Reports, Indiana Supreme Court; Indiana Reports, vols. 3-7. Post (Mich.) .... Post's Reports, Michigan Supreme Court; Michigan Reports, vols. 23-34. Post. (Mo.) .... Post's Reports, Missouri Supreme Court; Missouri Reports, vols. 42-68. Postleth. Diet. . . . Postlethwaite's Dictionary of Trade. Poth. Obi Pothier on Obligations. Poth. Sale Pothier on Contract of Sale. Pow. Conv Powell on Conveyances. Pow. Dev Powell on Devises. Pow. Mort Powell on Mortgages. Pow. Prec Powell's Precedents in Conveyancing. Pow. R&D Power, Rodwell, & Dew's Election Cases. Poynt. M. & D. . . . Poynter on Marriage and Divorce. Pr Ch Precedents in Chancery, English Chancery; Finch's Precedents. Pr. Co Prerogative Court. Pr. Dec Sneed's Printed Decisions, Kentucky Court 6t Appeals ; Sneed's Decisions. Pr. Pale President Falconer's Reports, Scotch Court of Session. Pr^ I^g. or Pr. Reg. 1 practical Register in Common Pleas. Pr. Reg. Ch Practical Register in Chancery. Pr. St Private Statute. Pres. Abs Preston on Abstracts. Pres. Conv • Preston on Conveyancing. Pres. Est Preston on Estates. Pres. Merg Preston on Merger. Pres Shep. T. . . . Preston's Sheppard's Touchstone. Price Price's Reports, English Exchequer. Prid. Prec Prideaux's Precedents in Conveyancing. Prid. & C Prideaox & Cole's Reports, English Courts ; New Sessions Cases, vol. 4. XSXIV TABLE OF ABBREVIATION'S Prob. & Mat. Cas. . . Probate and Matrimonial Cases. Puf. Puffendorf s Law of Nations. Pult. de Pace .... Pulton de Pace Regis. Purd. Dig Purdon's Digest, Pennsylvania Eeports. Pyke Pyke's Reports, Lower Canada King's Bench. Q Quorum. Q. B Queen's Bench. Queen's Bench Reports. Adolphus & Ellis' Reports, New Series. Q. C Queen's Counsel. Q. S. . . .... Quarter Sessions. Q. t Qui tarn. Q. war Quo Warranto. Quiney Quincy's Reports, Massachusetts Supreme Court. Quinti Quinto . . . Year Book 5 Hen. V. R. R. I E. L. . . . R. M. Charlt. . E. S. . . . . E. S. L. . . E. t. P. . . . E. t. Hardw. E. t. Holt .... R. & M R. & M. C. C. . . R. & R. C. C. . . Railw. Cas. . . . Railw. & Can. Cas. . Ram F Eam Judg. . . . Rand Perp. . . . Rand. (La.) . . . Rand. (Va.) . . . Rast. Ent Rawle Rawle Cov. Tit. . . Rawle, P. & W. . . Ray Med. Jur. Insan Raym. Ent. Eaym. Ld. Eaym. T. . Eayn. . . Eedf. (N. Y.) Surr. Eedf. Railw. Beding. . . Reeve Rom. Eel. Reeves Hist. Eng, Reeves Ship, Reg. Brev. Reg. Cas. . Reg. Jud. . Eeg. Orig. . Eep. . . . Eep. Ca. Pr. Eep. Ch. . Eep. Eq. . Eep. Q. A. Eep. t. Finch. Eep. t. Hardw, Law King Eichard ; thus 1 E. I. signifies the first year of the reign of King Eichard 'I. Ehode Island. Rhode Island Reports, Supreme Court. Roman Law. Revised Laws. R. M. Charlton's Reports, Georgia Superior Court. Revised Statutes. Eeading on Statute Law. Eeports tempore Finch, English Chancery; Cases tempore Finch. Reports tempore Hardwioke, English King's Bench ; Cases tem- pore Hardwicke. Eeports tempore Holt, English King's Bench ; Holt's Eeports. Eyan & Moody's Nisi Prius Cases, English Courts. Eyan & Moody's Crown Cases Reserved, English Courts. Eussell & Evan's Crown Cases Eeserved, English Courts. Railway Cases. Railway and Canal Cases. Eam on Facts. Eam on Legal Judgment. Rand on Perpetuities. Randolph's Reports, Louisiana Supreme Court ; Louisiana Re- ports, vols. 7-11. Randolph's Reports, Virginia Court of Appeals. Rastell's Entries. Rawle's Reports, Pennsylvania Supreme Court. Rawle on Covenants for Title. Eawle, Penrose, & Watts' Reports, Pennsylvania Supreme Court ; Pennsylvania State Eeports, vol. 1. Eay on Medical Jurisprudence of Insanity. Raymond's Book of Entries. Lord Raymond's Reports, English King's Bench and Common Pleas. Raymond's Reports, English Courts. Eayner's Tithe Cases. Redfield's Reports, New York Surrogates Court. Redfield on Railways. Eedington's Eeports, Maine Supreme Court ; Maine Eeports, vols. 31-35. Reeve on Domestic Relations. Reeves' History of English Law. Reeves on Sliipping. Registrum Brevium. Registration Cases. Registrum Judiciale. Registrum Originale. Eeports. Coke's Reports. Eeports of Cases of Practice, English Common Pleas ; Cooke's Reports. Eeports in Chancery, English Chancery. Eeports in Equity ; Gilbert's Cases in Equity. Reports tempore Queen Anne ; Modern Reports, vol. 11. Eeports tempore Finch, English Chancery ; Cases tempore Finch., Reports tempore Hardwicke, English King's Bench; Cases tem- pore Hardwicke. USED IN JURISPRUDENCE. xxxv Rep. t. Holt Reynolds . Rice or Rice (S. C.) . Rice Ch. or Rice (S.C.) Ch. ... Rich, or Rich. (S Rich. Eq. or (S. C.) Eq. Rich. Pr. . Rich. Pr. Cora. PI, Rich. & W. Ridgw. or Rldgw, t. Hardw. Ridgw. Ap. or Ridgw. Pari. Cas. . Ridgw. L. & S. Ridgw. St. Tr. Riley or Riley ( Riley Ch. or (S. C.) Ch. Rob. Chr. Adm. Rob. (Cal.) . Rob. Dig. Kob. Ecc. Rob. Ent. Rob. (La.) Rob. (Va.) . Rob. W. Adm. Robards . . Robards & J. Robb Pat. Cas. Robertson Ap. Robinson Ap. Robs. Bankr, Robt. or Robt. (N. Rog. Ecc. L. . Rog. Rec. . . Rol. or RoUe . Rol. Abr. . . Rom. No. Cas. Root .... Roper H. & W. Rop. Leg. . . Rose. Cr. Et. . Rose. Bv. N. P. Rose PI. . . Rose. R. Ac. . Rose .... Ross Conv. Ross Lead. Cas. Rowe . . . Rub Ruffh. St. . . Rannell . . . Running. Eject. Running. Stat. Russ. . . . Buss. Cr. & M. Russ. Pact. . Russ. & M. . C.) . Rich. . Cas, Riley .Y.). Reports tempore Holt, English King's Bench ; Holt's Reports. Reynolds' Reports, Mississippi High Court of Errors & Appeals ; Mississippi Reports, vols. 40-42. Rice's Law Reports, South Carolina Court of Appeals, and Court of Errors. 1 Rice's Chancery Reports, South Carolina Court of Appeals, i and Court of Errors. Richardson's Law Reports, South Carolina Court of Appeals. > Richardson's Equity Reports, South Carolina Court of Appeals. Richardson's Practice in King's Bench. Richardson's Practice in Common Pleas. Richardson & Woodbury's Reports, New Hampshire Supreme Court ; New Hampshire Reports, vol. 2. iRidgeway's Reports, English Chancery and King's Bench. Ridgeway's Appeals from Ireland, English House of Lords. Ridgeway, Lapp, & Schoales' Reports, Irish King's Bench. Ridgeway's State Trials. Riley's Law Reports, South Carolina Court of Appeals. > Riley's Chancery Reports, South Carolina Court of Appeals. C. Robinson's Admiralty Reports, English Admiralty. Robinson's Reports, California Supreme Court; California Re- ports, vol. 38. Robertson's Lower Canada Digest. Robertson's Ecclesiastical Reports, English Ecclesiastical Courts. Robinson's Entries. Robinson's Reports, Louisiana Supreme Court ; Louisiana An- nual Reports, vols. 1-4. Robinson's Reports, Virginia General Court. W. Robertson's Admiralty Reports, English Admiralty. Robards' Reports, Missouri Supreme Court ; Missouri Reports, Vols. 12, 13. Robards & Jackson's Reports, Texas Supreme Court; Texas Reports, vols. 26, 27. Robb's Patent Cases. Robertson's Reports, English House of Lords, Appeals from Scotland. Robinson's Reports, English House of Lords, Appeals from Scotland. Robson on Bankruptcy. Robertson's Reports, New York City Superior Court. Rogers on Ecclesiastical Law. Roger's Recorder, New York Courts ; City Hall Recorder. Rolle's Reports, English King's Bench. Rolle's Abridgment. Romilly's Notes of Cases, English Chancery. Root's Reports, Connecticut Supreme Court of Errors. Roper on Husband and Wife. Roper on Legacies. Roscoe on Criminal Evidence. Roscoe on Evidence at Nisi Prius. Roscoe on Pleading. Roscoe on Real Actions. Rose's Reports, English Bankruptcy. Ross' Lectures on Conveyancing. Ross' Leading Cases in Commercial Law. Rowe's Parliamentary and Military Cases. Rubric. Ruffhead's Statutes at Large. Runnell's Reports, Iowa Supreme Court ; Iowa Reports, vols. 38, 39. Runningfon on Ejectment. Runnington on Statutes. Russell's Reports, English Chancery. Russell on Crimes and Misdemeanors. Russell on Factors. Russell & Mylne's Reports, English Chancery. xxxvi TABLE OF ABBREVIATIONS Russ. & R Russell & Ryan's Crown Cases Reserved, English Courts. Ruth. Inst Eutherforth's Institutes. Ry. F. or Eym. Feed. . Rymer's Foedera. Ry. & M Ryan & Moody's Nisi Prius Cases, English Courts. Ry. & M. C. C. . . . Ryan & Moody's Crown Cases Reserved, English Courts. S Section. Shaw & Dunlop's Reports, First Series, Scotch Court of Session. S. B Upper Bench. S. C Senatus-Consulte. Supreme Court. Same Case. South Carolina. South Carolina Reports, Court of Appefils and Court of Errors. S. C. C Select Chancery Cases, English Chancery ; Cases in Chancery. S. Just Shaw's Justiciary Cases, Scotch Justiciary Court. S. L. C. A Stuart's Lower Canada Appfeal Cases. S. P Same Point. Same Principle. S. Teinds Shaw's Teinds Cases, Scotch Courts. S. V. A. R Stuart's Vice-Admiralty Reports, Lower Canada. S. & B Smith & Batty's Reports, Irish King's Bench. S. & D Shaw & Dunlop's Reports, First Series, Scotch Court of Session. S. & L Schoales & Lefroy's Reports, Irish Chancery. S- & M Shaw & Maclean's Appeal Cases, English House of Lords. S. & R Sergeant & RaWle's Reports, Pennsylvania Supreme Court. S. & S Simons & Stuart's Reports, English Chancery. S. & So Sausse & Scully's Reports, Irish Chancery. S. & Sm Searle & Smith's Reports, English Probate and Divorce Cases. S. & T Swabey & Tristram's Reports, English Probate and Divorce Cases. Salk Salkeld's Reports, English Courts. Sand. Us Sander's on Uses and Trusts. Sandf Sandford's Reports, New York City Superior Court. Sandf. Ch Sandford's Reports, New York Chancery. Sau. & Sc Sausse & Scully's Reports, Irish Chancery. Saund Saunders' Reports, English King's Bench. Saund. Neg Saunders on Negligence. Saund. PI Saunders on Civil Pleading. Saund. & C Saunders & Cole's Reports, English Bail Court. Sav Savile's Reports, English Common Pleas. Sawy. . . . . . . Sawyer's Reports, United States Circuit Court. Sax. or Saxt. Ch. . . Saxton's Chancery Reports, New Jersey Chancery; New Jersey Equity Reports, vol. 1. Say Sayer's Reports, English King's Bench. Sc Scilicet. Sc. Jut Scottish Jurist, Court of Session. Sc. L. R Scottish Law Reporter. Sc. Sess. Cas Scotch Court of Session Cases. Scac Scaccaria ; the Exchequer. Seam Scammon's Reports, Illinois Supreme Court. Sch. & L Schoale & Lefroy's Reports, Irisli Chancery. Sco. or Scott .... Scott's Reports, English Courts. Sco. N. R Scott's New Reports, English Courts. Scrib. Dower .... Scribner on Dower. Scriv. Copyhold . . . Scriven on Copyholds. Sedgw. Dam Sedgwick on the Measure of Damages. \^'". . . .\ Sedgwick on Statutory and Constitutional Law. Ch. Cas. . . . . ! ( Select Chancery Cases, English Chancery ; Cases in Chancery. Sel. Cas. Ev Select Cases in Evidence. Sel. Cas. N. F. . . . Select Cases, Newfoundland Courts. Seld. or Seld. (N. Y.) . Selden's Reports, New York Court of Appeals ; New York Re- ports, vols. 5-10. Seld. Notes .... Selden's Notes of Cases, New York Court of Appeals. Selw. N. P Selwyn's Nisi Prius. Semb Semble ; it seems. Serg. & R Sergeant & Rawle's Reports, Pennsylvania Supreme Court. Sess. Cas Session Cases, English King's Bench. Sess. Cas. Scotch . . Session Cases, Scotch Court of Session. Sett. Cas Settlement Cases. Sh Shaw's Reports, First Series, Scotch Court of Session. USED IN JURISPRUDENCE. sxxvii Sh. Ap Shaw's Appeal Cases, English House of Lords, Appeals from Scotland. Sh. Dig Shaw's Digest of Decisions, Scotch Courts. Sh. & Dunlop .... Shaw & Dunlop's Reports, Scotch Court of Session ; Scotch Session Cases, First Series. Sh. & M'L Shaw & Maclean's Appeal Cases, English House of Lords. Shand Pr Shand's Practice, Scotch Court of Session. Shaw J Shaw's Justiciary Cases, Scotch Justiciary Court. Shaw (Vt.) .... Shaw's Reports, Vermont Supreme Court; Vermont Reports, vols. 10, 11, 30-35. Shelf. Cop Shelford on Copyholds. Shelf. J. S. Comp. . . Shelford on Joint Stock Companies. Shelf. Lun Shelford on Lunacy. Shelf. M. & D. . . . Shelford on iVIarriage and Divorce. Shelf. Mort Shelford on Mortmain. Shelf. Railw Shelford on Railways. Shelf. T Shelford on Titles. Shep. (Ala.) .... Shepherd's Reports, Alabama Supreme Court; Alabama Re- ports, vols. 19-21, 25-41. Shep. Touch Sheppard's Touchstone. Shepl Shepley 's Reports, Maine Supreme Court ; Maine Reports, vols. 13-18, 21-30. Shipp Shipp's Reports, North Carolina, Supreme Court ; North Caro- lina Reports, vols. 66, 67. Shirley Shirley's Reports, New Hampshire Supreme Court; New Hamp- shire Reports, vols. 49-55. Shortt Copy Shortt on Copyright. Show Shower's Reports, English King's Bench. Show. P. C Shower's Parliamentary Cases. Sick Sickles' Reports, New York Court of Appeals ; New Tork Re- ports, vols. 46-66. Sid Siderfin's Reports, English King's Bench. Sim Simons' Reports, English Chancery. Sim. N. s Simons' Reports, New Series, English Chancery. Sim. & S Simons & Stuart's Reports, English Chancery. Skene Verb. Sig. . . Skene de Verborum Signiflcatione. Skin Skinner's Reports, English King's Bench. Slade Slade's Reports, Vermont Supreme Court; Vermont Reports, vol. 15. Sm. Ac Smith's Action at Law. Sm Cont Smith on Contracts. t Sm. Eq. Man Smith's Manual of Equity. Sm. Land. & T. . . . Smith on Landlord and Tenant. Sm. Law of Prop. . . Smith on Law of Real and Personal Property. Sm. Lead. Cas. . . . Smith's Leading Cases. Sm. Mast. & S. . . . Smith on Master and Servant. Sm. Merc. Law. . . . Smith on Mercantile Law. Sm. & Bat Smith & Batty's Reports, Irish King's Bench. Sm> & G Smale & GifEard's Reports, English Chancery. Sm. & M Smedes & Marshall's Reports, Mississippi Superior Court of Chancery. Smith Smith's Reports, English King's Bench. ^'smith''(N*'Y°^ ^' .''^' 1 ^- ^- Smith's Reports, New York Common Pleas. Smith (Ind.) .... Smith's Reports, Indiana Supreme Court. Smith (Me.) .... Smith's Reports, Maine Supreme Court; Maine Reports, vols. 61-64. Smith (N. Y.) . . . Smith's Reports, New York Court of Appeals ; New York Re- ports, vols. 15-27. Smith (Pa.) .... Smith's Reports, Pennsylvania Supreme Court; Pennsylvania State Reports, vols. 51-80. Smith (Wis.) .... Smith's Reports, Wisconsin Supreme Court; Wisconsin Re- ports, vols. 1-11. Smith &B. Railw. Cas. Smith & Bates' Railway Cases, American Courts. Smith & Bat Smith & Batty's Reports, Irish King's Bench. Smythe Smythe's Reports, Irish Common Pleas and Exchequer. ^"pr^D^^'^ *"^ ^"^^"^ I ^"^^^'^ Printed Decisions, Kentucky Court of Appeals. Sneed (Tenn.) . . . Sneed's Reports, Tennessee Supreme Court. South Southard's Reports, New Jersey Supreme Court; New Jersey Law Reports, vols. 4, 5. xxxviii TABLE OF ABBREVIATION'S Spears or Spears (S.C.) Spears' Law Reports, South Carolina Court of Appeals and Court of Errors. ^Ts"c.f Eq"."^ ^^!*" I ^P*""' ^^""y Reports, South Carolina Court of Appeals. Spel. or Spel. Gloss. . Spelman'a Glossary. Spencer Spencer's Eeports, New Jersey Supreme Court; New Jersey Law Reports, vol. 20. Spinks Spinks' Reports, English Ecclesiastical and Admiralty Reports. Spooner Spooner's Reports, Wisconsin Supreme Court; Wisconsin Re- ports, vols. 12-15. Spott Spottiswoode's Reports, Scotch Court of Session. Spott. St Spottiswoode's Styles. Sprague Sprague's Decisions, Um'ted States District Court. Ss Scilicet. St Statute. Statutes. Stair's Institutions of the Law of Scotland. St. Ecc. Cas Stillingfleet's Ecclesiastical Cases. St. Germain .... St. Germain ; Doctor and Student St. Tr State Trials. Stair Stair's Reports, Scotch Court of Session. Stair Inst Stair's Institutions of the Law of Scotland. Stair Pr. . . .' . . Stair's Principles of the Law of Scotland. Stanton Stanton's Reports, Ohio Supreme Court; Ohio Reports, vols. 11-13. Star Ch. Cas Star Chamber Cases. Stark. Cr. L Starkie on Criminal Law. ' Stark. Cr. PI Starkie on Criminal Pleadings. Stark. Ev Starkie on Evidence. Stark. N. P Starkie's Nisi Prius Reports, English Courts. Stark. Sland Starkie on Slander and Libel. Stat Statute. Statutes. Stat, at L Statutes at Large. Stat. Glo Statute of Gloucester. Stat. Marlb Statute of Marlbridge. Stat. Mer. Statute of Merton. Stat. Westm Statute of Westminster. Stat. Winch Statute of Winchester. State Tr State Trials. Stath. Abr Statham's Abridgment. Staunf. P. C. & Pr. . . Staunforde's Pleas of the Crown and Prerogative. Steph. Com Stephen's Commentaries on English Law. Steph. Cr. L Stephen on Criminal Law. Steph. PI Stephen on Pleading. ^7n' sf"' "" ^'^''' [ Stewart's Admiralty Reports, Nova Scotia Courts. Stew. (Ala.) .... Stewart's Reports, Alabama Supreme Court. ^'p"^'(Aia'^)' ""^ ^^^^' ^ I S'**^^' ^ Porter's Reports, Alabama Supreme Court. Stiles Stiles' Reports, Iowa Supreme Court ; Iowa Reports, vols. 22-37. Stillingfl. Ec Stillingfleet's Ecclesiastical Cases. Stockett Stockett's Reports, Maryland Court of Appeals ; Maryland Ee- ports, vols. 27-45. Stockt Stockton's Reports, New Jersey Court of Chancery and Court of Errors and Appeals ; New Jersey Equity Reports, vols.9, 11. Story Story's Reports, United States Circuit Court. Story Ag Story on Agency. Story Bailm Story on Bailment. Story Bills Story on Bills of Exchange. Story Confl. L. . . . Story on Conflict of Laws. Story Const Story on the Constitution. Story Eq. Jur. . . . Story on Equity Jurisprudence. Story Eq. PI Story on Equity Pleading. Story Part Story on Partnership. Story Prom. N. . . . Story on Promissory Notes. Stra. or Strange . . . Strange's Reports, English Courts. Stringf. Stringfellow's Reports, Missouri Supreme Court; Missouri Re- ports, vols. 9-11. Strobh Strobhart's Law Reports, South Carolina Court of Appeals and Court of Errors. Strobh. Eq Strobhart's Equity Reports, South Carolina Court of Appeals and Court of Errors. USED IN JURISPRUDENCE. xxxix Stuart L. C Stuart's Reports, Lower Canada King's Bench. Stuart, M. & P. . . . Stuart, Milne, & Peddie's Reports, Scotch Court of Session. Style Style's Reports, English King's Bench. , Sugd. Pow. .... Sngden on Powers. Sugd. Pr Sugden on Law of Property. Sugd. Pr. St Sugden on Property Statutes. Sugd. Vend. & P. . . Sugden on "Vendors and Purchasers. Sumn Sumner's Reports, United States Circuit Court. Swab. Adm Swabey's Reports, English Admiralty Courts. Swab. & T Swabey & Tristram's Reports, English Probate and Diyoroe Courts. Swan Swan's Reports, Tennessee Supreme Court. Swanst Swanslon's Reports, English Chancery. Sweeny Sweeny's Reports, New York City Superior Court. Sweet Pr. Conv. . . . Sweet's Precedents in Conveyancing. Sweet Wills .... Sweet on Wills. Swinb. Spous. . . . Swinburne on Spousals. Swinb. Wills .... Swinburne on Wills. Swint. Swinton's Reports, Scotch Justiciary Court. Syme Syme's Reports, Scotch Justiciary Court. T Trinity Term. Tempore; in the time of. T. B. Monr T. B. Monroe's Reports, Kentucky Court of Appeals. T. Jones T. Jones' Reports, English King's Bench and Common Pleas. T. L Termes de la Ley. T. R Teste Rege. Term Reports, English King's Bench ; Dumford & East's Reports. T. R. E Tempore Regis Edwardii ; in the time of King 'Eiwaid. T. Raym T. Raymond's Reports, English Courts. T. T Trinity Term. T. U. P. Charlt. . . . T. U. P. Charlton's Reports, Georgia Supreme Court. T. & G Tyrwhitt & Granger's Reports, English Exchequer. T. & M Temple & Mew's Reports, English Criminal Appeal Cases. T. & R Turner & Russell's Reports, English Chancery. Talbot Cases tempore Talbot, English Chancery. Taml Tamlyn's Reports, English Chancery. Taney Taney's Decisions, United States Circuit Court. Tanner Tanner's Reports, Indiana Supreme Court; Indiana Reports, vols. 8-14. Tapp Tappan's Reports, Ohio Common Pleas. Taunt Taunton's Reports, English Common Pleas. Tayl. Civ. L Taylor on Civil Law. Tayl. Ev Taylor on Evidence. Tayl. Land. & T. . . Taylor on Landlord and Tenant. Tayl. Med. Jur. . . . Taylor on Medical Jurisprudence. Tayl. (N. C.) . . . . Taylor's Reports, North Carolina Courts. Tayl. (U. C.) . . . . Taylor's Reports, Upper Canada IQng's Bench. Tayl. Pois Taylor on Poisons. Temp. & M Temple & Mew's Reports, English Criminal Appeal Cases. Tenn Tennessee. Tennessee Reports, Supreme Court. Term Term Reports, English King's Bench. Term (N. C.) .... Term Reports, North Carolina Supreme Court; Taylor's Re- ports. Terrell & W Terrell & Walke's Reports, Texas Supreme Court ; Texas Re- ports, vols. 38-44. Tex Texas. Texas Reports, Supreme Court. Th Thomson on Bills and Notes. Th. Br Thesaurus Breviura. Th. Dig Theloall's Digest. Th. Ent Thompson's Entries. Thach. Cr. Cas. . . . Thacher's Criminal Cases, Boston Municipal Court. Thomp. (Cal.) . . . Thompson's Reports, California Supreme Court ; California Re- ports, vols. 39, 40. Thomp. & C Thompson & Cook's Reports, New York Supreme Court ; New York Supreme Court Reports. Thoms. (N. C.) . . . Thomson's Reports, Nova Scotia Supreme Court. Tidd Tidd on Practice in King's Bench. Tiff. Tiffany's Reports, New York Court of Appeals ; New York Re- ports, vols. 28-39. Tiff. & B. Trusts . . Tiffany & Bullard on Trusts. "> xl TABLE OF ABBREVIATIONS Tinw Tinwald's Reports, Scotch Court of Session. Tobey Tobey's Reports, Rhode Island Supreme Court ; Rhode Island Reports, vols. 9, 10. Toll. Ex Toller on Executors. Toml. Diet Tomlin's Jacob's Law Dictionary. Toml. Suppl. Brown . Tomlin's Supplement to Brown's Parliament Cases. Toth Tothill's Reports, English Chancery. Towns. St. Tr. . . . Townsend's Modern State Trials. Tr. Eq Treatise of Equity. Train & H. Free. . . Train & Heard's Precedents of Indictments. Treadw Treadway's Reports, South Carolina Constitutional Court. Trera Tremaine's Pleas of the Crown. Trin.or Trin.T. . . . Trinity Term. , Tuck. (N. Y.) Surr. . Tucker's Reports, New York Surrogate's Court. Tuck. Sel. Cas. (N. F.) Tucker's Select Cases, Newfoundland Courts. Tud. Cas. M. L. . . . Tudor's Leading Cases on Mercantile Law. Tud. Cas. R. P. . . . Tudor's Leading Cases on Real Property. Tud. Char. Trusts . . Tudor on Charitable Trusts. Turn. Ch. Pr. ... Turner on Chancery Practice. Turn. & R Turner & Russell's Reports, English Chancery. Tuttle Tuttle's Reports, California Supreme Court; California Re- ports, vols. 23-32, 41-61. Twiss Twiss on Law of Nations. Tyler Tyler's Reports, Vermont Supreme Court. Tyng Tyng's Reports, Massachusetts Supreme Court ; Massachusetts Reports, vols. 2-17. Tyrw Tyrwhitt's Reports, English Exchequer. Tyrw. & G Tyrwhitt & Granger's Reports, English Exchequer. XT. B Upper Bench. U. B. P Upper Bench Precedents. U. C. C- P Upper Canada Common Pleas Reports. U. C. Cham Upper Canada Chambers Reports. U. C. Chan Upper Canada Chancery Reports. U. C. E, & A. . . . Upper Canada Error and Appeal Reports. U. C. L. J Upper Canada Law Journal. U. C. o. s Upper Canada Queen's Bench and Practice Reports, Old Series. U. C. Pr Upper Canada Practice Reports. U. C. Q. B Upper Canada Queen's Bench Reports. U. S. Dig United States Digest. Ulp Ulpian's Fragments. Upton Mar. W. & P. . Upton on Maritime Warfare and Prize. Upton Tradem. . . . Upton on Trademarks. V. or vs Versus; against. V. C Vice-chancellor. V. & B Vesey & Beames' Reports, English Chancery. V. & S Vernon & Scriven's Reports, Irish King's Bench and Irish House of Lords. Va. Cas Virginia Cases, General Court. Van Ness Van Ness' Reports, United States District Court. Van Santv. Eq. Pr. . Van Santvoord on Equity Practice. Vattel Vattel on Law of Nations. Vaugh Vaughan's Reports, English Common Pleas. Vaux Vaux's Decisions, Philadelphia Recorder. Veaz Veazey's Reports, Vermont Supreme Court ; Vermont Reports, vols. 36-46. Vent Ventris' Reports, English Courts. Vern Vernon's Reports, English Chancery. Vern. & S Vernon & Scriven's Reports, Irish King's Bench and Irish House of Lords. Ves Vesey's Reports, English Chancery; Vesey Senior's Reports. Ves. Jr Vesey Junior's Reports, English Chancery. Ves. & B Vesey & Beames' Reports, English Chancery. Vet. Entr Old Book of Entries. Vet. N. B Old Natura Brevium. Vid Vidian's Entries. Vin. Abr Viner's Abridgment. Vin. Supp Viner's Supplement. "Virg Virgin's Reports, Maine Supreme Court; Maine Reports, vols. 62—60. USED IN JURISPRUDENCE. xli Vr. or Vroom . . . Vroom's Reports, New Jersey Supreme Court and Court of Errors and Appeals ; New Jersey Law Reports, vols. 30-38. Vt Vermont. Vermont Reports, Supreme Court. W King William ; thus Arabic 1 W. I. signifies the first year of the reign of King William I. Statute of Westminster. W. Bl William Blaokstone's Reports, English King's Bench and Com- mon Pleas. W. H. & G Welsby, Hurlstone, & Gordon's Reports, English Exchequer ; Exchequer Reports, vols. 1-9. W Jones W. Jones' Reports, English King's Bench and Common Pleas. W. Kel W. Kelynge's Reports, English King's Bench and Chancery. W. N Weekly Notes, London. W. R West's Reports, tempore Hardwicke, English Chancery. Weekly Reporter. W. Va West Virginia. West Virginia Reports, Supreme Court. W. W. & D Willnaore, Wollaston, & Davies' Reports, English Queen's Bench. W. W. & H Willmore, Wollaston, & Hodges' Reports, English Queen's Bench. Wadd. Dig Waddilove's Digest of Cases in English Ecclesiastical Courts. Waif. Railw Walford on Railways. Walk. (Mich.) . . . Walker's Reports, Michigan Chancery. Walk. (Miss.) _ . . . Walker's Reports, Mississippi High Court of Errors and Ap- peals ; Mississippi Reports, vol. 1. Walk. (Tex.) .... Walker's Reports, Texas Supreme Court; Texas Reports, vol. 25. Wall, or Wall. (U. S.) . Wallace's Reports, United States Supreme Court. WalL C. C Wallace's Reports, United States Circuit Court. WalU Jr Wallace Junior's Reports, United States Circuit Court. Wall. (Pa.) .... Wallace's Legal Intelligencer Reports, Pennsylvania Courts; Philadelphia Reports. WaUis Wallis' Reports, Irish Chancery. Ward Leg. . . ... Ward on Legacies. Warden Warden's Reports, Ohio Supreme Court ; Ohio State Reports, vols. 2, 4. Warden & Sm. . . . Warden & Smith's Reports, Ohio Supreme Court; Ohio State Reports, vol. 3. Ware Ware's Reports, United States District Court. Warren L. Stud. . . Warren's Law Studies. Wash, or Wash. C. C. Washington's Reports, United States Circuit Court. Wash. T Washington Territory Reports, Territorial Court. Wash; (Va.) .... Washington's Reports, Virginia Court of Appeals. Washb Washburn's Reports, Vermont Supreme Court; Vermont Re- ports, vols. 16-23. Washb. Easem. . . . Washburn on Easements. . Washb. Real Prop. . Washburn on Real Property. ■ Watk. Conv Watkins on Conveyancing. _Wats. Arb Watson on Arbitration. Watts Watts' Reports, Pennsylvania Supreme Court. Watts & S Watts & Sergeant's Reports, Pennsylvania Supreme Court. Webb Webb's Reports, Kansas Supreme Court ; Kansas Reports, vols. 6-17. Webb & D Webb & Duval's Reports, Texas Supreme Court ; Texas Re- ports, vols. 1-3. Welsby, H. & G. . . Welsby, Hurlstone, & Gordon's Reports, English Exchequer; Exchequer Reports, vols. 1-9. Welsh Welsh's Registry Cases. Wend Wendell's Reports, New York Supreme Court and Court of Errors. Went. Off. Ex. . . . Wentworth's Office of Executor. Went. PI Wentworth's Pleadings. West or West t. H. . West's Reports tempore Hardwicke, English Chancery. West H. L West's Reports, English House of Lords. West L. Jour. . . . West's Law Journal. West Va West Virginia. West Virginia Reports, Supreme Court. Weston Weston's Reports, Vermont Supreme Court ; Vermont Reports, vols. 12-14. Whart Wharton's Reports, Pennsylvania Supreme Court. . Whart. Cr. Law. . . Wharton on American Criminal Law. Whart. Lex Wharton's Law Lexicon. xlii TABLE OF ABBREVIATIONS Whart. Free. Indict. . Wharton's Precedents of Indictments. Whart. St. Tr. . . . Wharton's State Trials of the United States. Whart. & S. Med. Jur. Wharton & Stille on Medical Jurisprudence. Wheat Wheaton's Reports, United States Supreme Court. Wheat. Int. L. . . . Wheaton on International Law. Wheeler Cr. Cas. . . Wheeler's Criminal Cases, New York Courts. Wheelock Wheelock's Reports, Texas Supreme Court; Texas Reports, vols. 82-37. ^WKite&T^^' ?^^.' °! 1 ^^^^ ^ Tudor's Leading Cases in Equity. Whitt Whittlesey's Reports, Missouri Supreme Court; Missouri Re- ports, vols. 32-41. Wig. Disc Wigrara on Discovery. Wig. Wills .... Wigram on Wills. Wight El. Cas. . . . Wiglit's Election Cases. Wightw Wightwick's Reports, English Exchequer. Wilcox Wilcox's Reports, Ohio Supreme Court; Ohio Reports, vol. 10. Willes Willes' Reports, English Courts. Williams or Williams P. Peere Williams' Reports, English Chancery. Williams Ex Williams on Executors. Williams Just. . . . Williams' Justice of the Peace. Williams (Mass.) . . Williams' Reports, Massachusetts Supreme Court; Massachu- setts Reports, vol. 1. Williams Pers. Prop. . Williams on Personal Property. Williams Real Prop. . Williams on Real Property. Williams S Williams' Notes to Saunders' Reports. Williams (Vt.) . . . Williams' Reports, Vermont Supreme Court ; Vermont Reports, vols. 27-29. Willis Eq Willis on Equity Pleadings. Willis Trus Willis on Trustees. Willmore, W. & D. . . Willmore, WollaSton, & Davison's Reports, English Queen's Bench. Willmore, W. & H. . . Willmore, WoUaston, & Hodges' Reports, English Queen's Bench. Wills Cir. Ev. . . . Wills on Circumstantial Evidence. Wilm. or Wilmot N. 0. Wilmot's Notes of Opinions and Judgments, English King's Bench. Wilmot Wilmot on Mortgages. Wils Wilson's Reports, English King's Bench. Wils. (Cal.) .... Wilson's Reports, California Supreme Court; California Re- ports, vol. 1. Wils. Ch Wilson's Reports, English Chancery. Wils. Ex Wilson's Reports, English Exchequer Equity. Wils. (Greg.) .... Wilson's Reports, Oregon Supreme Court; Oregon Reports, vols. 1-3. Wils. & C Wilson & Courtenay's Reports, English House of Lords, Appeals from Scotland; Wilson & Shaw's Reports, vols. 6, 7. Wils. & S Wilson & Shaw's Reports, English House of Lords, Appeals from Scotland. Win. or Winch . . . Winch's Reports, English Courts. Win. Ent Winch's Entries. Wing. Max Wingate's Maxims. Wins Winston's Reports, North Carolina Supreme Court. Wis - . Wisconsin. Wisconsin Reports, Supreme Court. Withrow Withrow's Reports, Iowa Supreme Court; Iowa Reports, vols. 9-20. Wm. Rob Wm. Robinson's New Admiralty Reports, English Admiralty. Wms. or Wms. P. . . Peere Williams' Reports, English Chancery. Wms. Ex Williams on Executors. Wms. Just Williams' Justice of the Peace. Wms. Pers. Prop. . . Williams on Personal Property. Wms. Real Prop. . . Williams on Real Property. Wms. S Williams' Notes to Saunders' Reports. Wolf. & B Wolferstan & Bristow's Election Cases. Wolf, & D Wolferstan & Dew's Election Cases. Wood Wood's Reports, United States Circuit Court. Wood Civ. L. . . . Wood's Institutes of the Civil Law. Wood Cora. L. . . . Wood's Institutes of the Common Law. Wood Conv Wood on Conveyancing. Wood H Button Wood's Decrees in Tithe Cases. Woodb. & M. Wooddes. Jur. . Wooddes. Lect. . Woodf. Land. & T. Woolw Woolw. (Neb.) . USED IN JURISPRUDENCE. xliii Wood Inst Wood's Institutes of English Law. Woodbury & Minot's Reports, United States Circuit Court. Wooddeson's Elements of Jurisprudence. Wooddeson's Lectures on Laws of England. Woodf all'on Landlord and Tenant. Woolworth's Reports, United States Circuit Court. Woolworth's Reports, Nebraska Supreme Court ; Nebraska Re- ports, vol. 1. Wordsw. J. S. Comp. . Wordsworth on Joint Stock Companies. Wright Cr. Consp. . . Wright on Criminal Conspiracies. Wright (Ohio) . . . Wright's Reports, Ohio Supreme Court. Wright (Pa.) . . . . Wright's Reports, Pennsylvania Supreme Court ; Pennsylvania State Reports, vols. 87-50. Wright Ten Wright on Tenures. Wyatt P. R Wyatt's Practical Register ; Practical Register in Ciiancery. Wytiie Wythe's Reports, Virginia Chancery. Y. B Year Books. Y. & C Younge & CoUyer's Reports, English Exchequer Equity. Y. & C. C. C Younge & CoUyer's Chancery Cases, English Chancery. Y. & J Younge & Jervis' Reports, English Exchequer. Yates Sel. Cas. . . . Yates' Select Cases, New York Supreme Court and Court of Errors. Yearb Yearbooks. Yeates Yeates' Reports, Pennsylvania Supreme Court. Yelv Yelverton's Reports, English King's Bench. Yerg Yerger's Reports, Tennessee Supreme Court. Yool Yool on Waste, Nuisance, and Trespass. You Younge's Reports, English Exchequer Equity. You. & Coll Younge & CoUyer's Reports, Exchequer Equity. You. & Coll. C. C. . . Younge & CoUyer's Chancery Cases, English Chancery. You. & Jer Younge & Jervis' Reports, English Exchequer. Zabr. or Zab. (N. J.) . Zabriskie's Reports, New Jersey Supreme Court, and Court of Errors and Appeals ; New Jersey Law Reports, vols. 21-24. LAW DICTIONARY. A, or a, as the first letter of the alpha- bet, is often used to distinguish a sub- division of a legal treatise or chapter of a digest, or a page of a boot, from a following one, marked B or b. A. AN. The definite article, a or an, does not invariably mean a single one. Where directors are empowered, for a certain purpose, to issue a note, or accept a bill of exchange, to a certain amount, they are to be deemed authorized to give in lieu of the same several notes or bills, equal to the sum specified. Thompson v. Wesleyan Newspaper Association, 8 Com. B. 849 ; 19 Law J. K. s. 114. A 1. Of the highest qualities. An expression which originated in a prac- tice of underwriters of rating vessels in three classes. A, B, and C; and these again in ranks numbered. A. AB. From. Used in phrases as: A mensa et thoro; and A vinculo matrimonii. The two kinds of divorces, — one, "from bed and board," which merely authorizes a separate life of the husband and wife, without affecting the legitimacy of children, or authorizing either to contract a second marriage; the other, "from the bond of matri- mony," which completely dissolves the marriage contract, leaving the parties free to marry again, unless, as in Kew York, the party for whose misconduct the divorce is granted is laid under a positive prohibition. A posteriori; a priori; and a for- tiori. Three classes of arguments. A train of reasoning which proceeds from the efieot backwards to deduce the cause is called a posteriori, " from the later. " The converse, an argument which, as- suming the cause, demonstrates the result which must flow from it, is termed a pri- ori,'^ from the earlier. ' ' Reasoning that VOL. 1. because a specified, more surprising fact exists, therefore others which are less improbable maybe believed, is a fortiori ' ' from the stronger ' ' reasoning. A quo ; a qua. From which. The judge or court from which a cause has been brought by error or appeal, or has otherwise been removed, is termed the judge or court a quo, a qua. A verbis legis non est recedendum. From the words of the law there is no receding. Expresses a famUiar rule of statutory construction, viz., that the language of a statute is the primary guide in ascertaining the effect. If it is lucid, and expresses a single meaning, no extrinsic inquiry will be made for the purpose of varying it. Ab agendo. From acting. A person incapacitated, by mental or physical weakness or any other cause, for busi- ness or transactions of any kind, is said to be ab agendo. Ab assuetis non iit injuria. From matters of long standing no injury arises. An expression of the general principle that a person who neglects to insist upon his rights is deemed to have waived or abandoned them by long acquiescence in the existing state of things. Ab inconvenient!. From inconven- ience. This phrase designates argu- ments which seek to refute a proposition by pointing out disastrous consequences or untenable positions to which it neces- sarily leads. Thus it is said that, in interpreting the language of a constitu- tion or statute, the courts have nothing to do with the argument ab inconvenienti, but can only ascertain and declare the written law. Ab initio. From the beginning. The law sometimes imputes conse- AB INTESTATO ABATEMENT quences to an act from the time when it was perfonned, in view of a quality of such act which was not judicially as- certained till later. Thus an officer who seizes property under a process which he supposes, at the time, to be valid, but which is afterwards adjudged void, may be chargeable as a trespasser ah initio. Ab intestate . From an intestate. Is generally used as the alternative or op- posite of ex testamento; e.g., vet ex tes- tamento, vel ab intestato, — either by will, or from an intestate. ABACTION. A carrying away by violence. ABACTOR. One who steals and drives away beasts by herds or droves ; as distinguished from one who steals a single animal only. Abandon. To relinquish; surren- der; disclaim; give up entirely. Abandonee : one to whom something is abandoned. Abandoner: one who abandons. Abandun, or Abandum (obs.) : a thing abandoned. ABANDONMENT. The relinquish- ment, sui-render, disclaimer, of one's rights. 1. An owner of property may, by acts evincing such an intent, divest him- self of all right therein, by making an abandonment of it, without making a transfer to a particular person ; and the title may remain in abeyance until some other person reduces the subject to pos- session. Thus it has been held that an owner of a wrecked vessel, although she lies in navigable waters, may abandon her, and thereafter disclaim all respon- sibility for injuries to another vessel which may collide with the wreck. So one who has made an invention, or pro- duced a literary work, may, by abandon- ment of it to the public, divest himself of all right to protection under the patent or copyright laws. 2. In insurance, the word has the modified sense of the surrender of the insured property, not to any one who may find and take it, but to the insur- ers ; the election of the insured to claim indemnity under his policy, and give up the remains of the subject of insurance to the underwriters. 3. A relation; a duty or an under- taking is sometimes spoken as of the subject of an abandonment; as the abandonment of a wife by her husband ; of a child by its parent; the abandon- ment of a prosecution or defence by the party by whom it was at one time un- dertaken. But the surrender of a rela^ tion, involving as it does the disclaimer of duties more prominently than that of rights, is better styled Desertion. Where a husband voluntarily leaves his wife, intending to forsake her entirely, and never to return to her, it is an abandon- ment within the meaning of a statute pro- viding that after abandonment by the hus- band the wife may carry on business as a feme sole. Moore v. Stevenson, 27 Conn. 14. Failure by the husband to supply his wife with such necessaries and comforts as are within his reach, and compelling her by cruelty to quit him, are as much an aban- donment as actual desertion on his part. Levering v. Levering, 16 Md. 213; Wash- burn V. Washburn, 9 Cal. 475. ABATEMENT. 1. As respects debts and legacies. When the funds of a de- cedent estate are not enough to pay in full all the debts and legacies, the legacies are, under many systems of ad- ministration, reduced in proportion, and paid pro rata. This reduction is termed abatement. 2. Abatement of nuisance is the re- moval, destruction, of the cause of offence or annoyance. There may be an abate- ment of a nuisance under judicial pro- ceedings resulting directly in its re- moval; or, in a proper case, by an act of individuals without other authority than that deduced from the illegality and mischief of the thing abated. Neither an action for damages nor an in- junction can abate a nuisance. An in- junction may prevent, and a verdict for damages may punish, but neither of them will abate, a nuisance. EufE v. Phillips, 60 Ga. 130. 3. In pleading, any matters of defence to a suit which only suspend the right to sue, or defeat the particular proceed- ing instituted, are termed defences in' abatement, in distinction, from those which tend to relieve the defendant wholly from the demand, and are termed pleas in bar. So if the right to prose- cute an action at law, or suit in chan- cery, is suspended by death of plaintiff, transfer of his interest, or other like oc- currence, the action or suit is said to be abated. ABATER ABOKTIOlSr 4. Abatement is used in many legal expressions in its ordinary English sense, and -without any peculiar technical mean- ing; as in speaking of the abatement by a creditor of a portion of his demand ; the abatement of duties upon importa- tions; or of taxes. ABATER, or ABATOR. One who makes actual removal of a nuisance, in virtue of the right to abate it. Also, one ■who, without right of entry in him- self, takes possession of land between the death of the previous owner and before the heir or devisee has entered. ABBREVIATIONS. Shortened con- ventional expressions, employed as sub- stitutes for names, phrases, dates, and the like, for the saving of space, of time in transcribing, &c. ABBROACHMENT. Buying mer- chandise while it is on the way to mar- ket, with intent to resell it. Also spelled Abbrochement ; Abroachment. See FOEESTALLING. ABDICATION. The surrender or re- linquishment of sovereign power; the abandonment of the throne. ABDUCTION. The wrongful, usually the violent, carryin g away a human being. The act of taking and carrying away a child, ward, wife, &o., by fraud, persuasion, or open violence. Carpenter v. People, 8 Barb. 603. To constitute a violation of the statute of New York against abduction of women for the purpose of prostitution (2 Rev. Stat. 664, § 26), there must be some positive act to get the female away from the person legally having charge of her. A mere at- tempt to seduce is not enough. People v. Parshall, 6 Park Cr. 129. A woman must be taken away, for the purpose of leading her to indiscriminate meretricious commerce with men, to make a prostitute of her. Such a statute does not apply to a case of a man's enticing such woman to leave her place of abode, for the sole purpose of illicit sexual intercourse with himself. Carpenter v. People, 8 Barb. 603. And so in Mass., Commonwealth v. Cook, 12 Met. 93 ; and in Iowa, State v. Euhl, 8 Iowa, 447. ABEARANCE. Behavior; conduct. A recognizance to be of good abearance means to be of good behavior. ABET. To aid, promote, facilitate, the commission of an act. Usually spoken of offences. Abettor : one who abets. Abetment: the act of abetting. See Accessory ; Aid ; Principal. It is said that an abettor is one who is present at and aids in the commission of an offence ; which distinguishes liim from an accessory, who is one not present at the very act, but concerned in the crime before or after its commission. Mozley S^ W. But see U. S. V. Gooding, 12 Wheat. 460. ABEYANCE. Suspense; the con- dition of being undetermined. While there is no person in existence in whom an estate (or a dignity or ecclesiastical preferment) can be deemed vested, the estate is said to be in abeyance ; for the law considers it as stiU potentially exist- ing, and ready to vest whenever a proper owner appears ; and indeed never allows an estate to be in abeyance, if avoidable. Estates thus situated are also said, in the older books, to be in nuhibus, in the clouds; or in gremio legis, in the bosom of the law. Abeyance is said to be of two sorts, being either — 1, Abeyance of the fee-simple, or 2, Abeyance of the freehold. The first is where there is an actual estate of freehold in esse, but the right to the fee-simple is suspended, and is to revive upon the hap- pening of some event; e.g. in the case of a lease to A for life, remainder to the right heirs of B who is alive, the fee-simple is in abeyance until B dies (Co. Litt. 342 6). The second species of abeyance, i.e. an abeyance of the freehold itself, occurs on the death of an incumbent, and until the appointment of his successor (Litt. § 647). Brown. ABIDE. A statutory bond " to abide " the order of the court, construed as mean- ing to perform ; to execute ; to conform to. Hodge V. Hodgdon, 8 Cush. 294. An engagement " to abide by the award," construed as meaning to await the award without revoking the submission, not neces- sarily to acquiesce in the award when made. Marshall v. Reed, 48 N. H. 36. ABJURE. To retract, recant, dis- avow, one's position upon oath. Thus in the United States an alien applying to be naturalized is required to declare on oath that he does entirely renounce and abjure all allegiance to any foreign power. In England, an oath, by which a person holding office must bind him- self not to acknowledge any right of the Pretender to the throne, has been styled the abjuration oath. ABODE. The place where a person dwells. See Domicile; Dwelling; Home; Inhabitastt ; Residence. Abordage. Collision between vessels. ABORTION. The act of bringing ABOUT ABSCOND forth what is yet imperfect; and par- ticularly the delivery or expulsion of the human foetus prematurely, or -before it is yet capable of sustaining life. Also, the thing prematurely brought forth, or product of an untimely process. Some- times loosely used for the offence of pro- curing a premature delivery ; but strictly ' the early delivering is the abortion ; caus- ing or procuring abortion is the fuU name of the offence. See Miscarriage. BurrUl confines the definition to a de- livery procured after the period of quick- ening; but this is probably said because the rules of the common law and the earlier statutes were most stringently aimed at protecting the foetus after quickening, and punished interferences with it after that point, more severely. Other authorities do not make the fact of quickening any part of the definition of the word; and although in spme juris- dictions it may be an element in render- ing the procuring an abortion punishable, in others the statutes have been enlarged to include before quickening as well as after. The expulsion of the ovum or embryo, within the first six weeljs after conception, is technically called miscarriage ; between that time and the expiration of the sixth month, when the child may possibly live, it is termed premature labor. Chitt, Med. Jur. 410. Our law does not recognize the distinction adopted by medical commentators on the subject, who consider miscarriages during the first six months as abortions, and those during the last three as premature labors ; but applies the term abortion to the throw- ing off of the fcetus at any period of the pregnancy. Wharton. ABOUT. When employed to qualify the statement of the length of a line, in a deed, " about " shows that exact precision is not intended ; but if the place where the monu- ment stood, by which the distance was controlled and determined, cannot be as- certained, the grantee must be limited to the number of rods or feet given. Cutta ». King, 5 Me. 482. Where, in an entry, the natural object is called for as being "about" a certain dis- tance from a fixed monument, and such ob- ject cannot be found, the call is rejected, and the distance mentioned is taken as the precise distance. Bodley v. Taylor, 5 Crunch, 191 ; Shipp V. Miller, 2 Wheat. 316. In ascertaining a place upon a river, designated to be found by its distance from another place, the vague words about or nearly, and the like, are to be rejected, if there are no other words rendering it necessary to retain them; and the distance mentioned is to be taken positively. John- son i: Pannel, 2 Wheat. 206. A contract to pay "a claim of about $150," was held a contract to pay the wliole debt, although it amounts to $200. Turner V. Whidden, 22 Me. 121. ABRIDGE. To reduce or contract; usually spoken of written language. Abridgment : the process of con- densing the language of a work into smaller compass; also, the result itself of such condensing. See Compile. 1. In copyright law, to abridge means to epitomize ; to reduce ; to contract. It im- plies preserving the substance, the. essence, of a work, in language suited to such a purpose. In making extracts there is no condensation of the author's language, and hence no abridgment. To abridge re- quires the exercise of the mind ; it is not copying. Between a compilation and an abridgment there is a clear distinction. A compilation "consists of selected extracts from different authors ; an abridgment is a condensation of the views of one author. Story V. Holcombe, 4 McLean, 306, 310. , 2. In pleading, to abridge means the making a declaration or count shorter by subtracting or severing some of the sub- stance therefrom; e.g. a man is said to abridge his plaint in assize, and a woman her demand in action of dower, wliere any land is put into the plaint or demand which is not in the tenure of the defendant ; for if the defendant plead non-tenure, joint-ten- ancy, or the like, in abatement of the writ as to part of the lands, the plaintiff may leave out those lands, and pray tliat the tenant may answer to the rest. Wharton ; Brooke. Abridgment has a special use in law literature, as the name of a class of books in which the substance of the re- ports, or the rules of law deduced from them, are concisely and systematically stated; such as Fitzherbert's Abridg- ment ; Brooke's Grand Abridgment ; Statham's Abridgment; Bacon's Abridg- ment; Viner's Abridgment. In this sense there is perhaps no very clearly drawn distinction between the term and digest. The latter seems generally to indicate rather a reproduction of the rules of the cases by mere quotation or extract ; while abridgment is usually used of works involving somewhat more origi- nality of authorship. ABSCOND. To depart clandestinely out of the jurisdiction of courts, or con- ceal one's self within it, for the purpose qi avoiding process. ABSENCE ABSENCE The laws of many of the states pro- vide somewhat stringent remedies author- izing attachment of any property re- maining within the jurisdiction belong- ing to debtors who abscond to avoid creditors, and allowing published or substituted service of process against them; and there has been similar legis- lation in England. These laws are known as the absconding debtor's acts ; or the absent and absconding debtor's acts. A debtor may " abscond," so as to sub- ject himself to the operation of the attach- ment laws, without actually leaving the state. Field v. Adreon, 7 Md. 209. The alleging in an affidavit for an attach- ment that the debtor absconds or secretes himself, constitutes only one ground of at- tachment. Cannon v. Logan, 5 Port. 77.- Abscond, alone, is not synonymous with remove. Ee Proctor, 27 Vt. 118. But an affidavit that the defendant is about to abscond himself and his property out of the state is equivalent to alleging tliat the defendant is about to remove him- self and property out of the state. Ware v. Todd, 1 Ala. 199. An intent to delay or defraud creditors is an element in absconding. Where a debtor went from the town of his usual residence, to another town in the state, and there worked openly at his trade as a joiu:- neyman, for above three months, without taking any measures to conceal himself, he was held not to be an absent or absconding debtor with respect to a creditor in the town which he left, though his friends and neighbors there did not know where he was, and his absence was a subject of con- versation among them. Fitch v. Waite, 5 Conn. 117. s. P. in Illinois, House v. Ham- ilton, 43 ///. 185. ABSENCE. The condition of being away, or removed. Absent : not present ; away ; removed. Absence and non-residence are not con- vertible term^: a statute authorizing an attachment on proof of non-residence is not satisfied by an affidavit that the defendant " is not at this time within the state." Croxall V. Hutohings, 12 N. J. L. 84. Absent debtor, in a statute authorizing proceedings against such, may include non- residents as well as residents. Cochran v. Fitch, 1 Sandf. Ch. 142. Absence, or absent, in the statutes of limitations of various states, which provide that the time of a debtor's absence, or the like, shall not be counted, are not confined in their application to persons who have once been inhabitants, but apply to those who have never before been in the state. So are the decisions of Mass., N. Y., Conn., Me., E. I., Vt., Ala., Miss., Mo., Pa., and Ohio ; though there have been contrary decisions in N. J. and Tex. The verb absent, in the phrase to absent one's self, im- plies prior presence. But the noun and ad- jective, absence and absent, though origi- nally they may have implied some prior presence, now mean, as ordinarily used, simply the state of being away, or not present ; and refer only to the condition or situation of the person or thing mentioned, without implying any thing as to any prior condition or situation. Paine v. Drew, 44 N. H. 306. Absent does not properly extend to de- ceased persons. A chancery attachment will not lie to charge the effects of a de- ceased foreign debtor in the hands of a resi- dent defendant ; for there is no longer any absent debtor within the meaning of the statute. Eedfern v. Eummey, 1 Vranch C, Ct. 300. Although a district judge may be present on the bench during the trial of a cause, yet, if he is not there for the purpose of taking part in the trial and decision, he may be regarded as " absent." Bingham I). Cabot, 3 Doll. 19, 36. Where a wife abandoned her husband, on account of his intemperate habits, cruel treatment, and absence from home, and during five successive years resided in an adjoining county, and it did not appear that she had knowledge of the death of such first husband, or that he was not generally well known to be living, it was held that these facts did not present a case of such a continuing absence of the husband for five successive years, within the provision of 2 N. Y. Eev. Stat. 139, § 6, as to render valid a second marriage, and authorize the issu- ing of letters to the woman as the widow of the second husband. There should be a bona fide absence of the absconding person from the state, and without being known to the other party to be living ; or, at least, there should be such an absence from the county as would preclude the idea that he was living, after the most careful and dili- gent inquiry had been made. Wyles c/. Gibbs, 5 N. Y. Surr. 382. Absence from the state as a volunteer soldier or officer in the army of the United States constitutes absence on public busi- ness within the meaning of 2 Gav. & H. 161, § 216, which provides that "the time daring which the defendant is a non-resident of the state, or absent on public business, shall not be computed in any of the periods of limitation." Gregg v. Matlock, 31 Ind. 373. In Scotch law, absence is used as equiva- lent to default or want of appearance. A decree is said to be in absence where the de- fender does not appear. Every Scotchman within the kingdom is liable to be called in an action before the court of session, in which action decree may be given against the defender, although he do not appear. Even a foreigner, though not withm the kingdom, provided he possess an estate in it, or goods which have been attached for the purpose of founding jurisdiction, may be exposed to a decree in absence. Wharton. ABSENTEE 6 ABUNDANS ABSENTEE. One who dwells abroad; usually spoken of a proprietor who make^ his residence somewhat permanently in another country than that where his es- tates axe situated. It means a person who has resided in the state, and has departed without leaving any one to represent him ; also, a person who never was domiciliated in the state, but re- sides abroad. Emmerling v. Cucullu, 18 La. Ann. 695. The absentees' parliament, so called, was held at Dublin, May 10, in the eighth year of Hen. VIII., and is mentioned in letters- patent, dated 29 Hen. VIII. 4 Co. Inst. 354. ABSOLUTE. Complete; perfect; un- conditional. When occurring in a statute restricting suspension of absolute ownership (1 N. Y. Eev. Stat. 773, § 1), it is used as the op- posite of "conditional," in the sense of " perfect," without any condition or incum- brance. The absolute ownership intended includes not only the property, but the right to an immediate and unconditional posses- sion. Converse v. Kellogg, 7 Barb. 590. Absolute is not used to distinguish a fee from a life-estate, but a qualified or con- ditional fee from a fee-simple. Greenawalt V. Greenawalt, 71 Pa. St. 483. It is used in various significations : com- plete ; not limited ; not relative ; uncon- ditional; independent of any thing extra- neous. In its signification of complete, not limited, it is used in the law to distinguish an estate in fee from an estate in remainder. In its signification of not relative, it de- scribes tlie rights of man in a state of nature, as contradistinguished from those which pertain to him in his social relations. A clause in a will, bequeathing property to testator's daughters, and directing that it " shall vest absolutely " in them, does not import an exclusion of the marital rights of a daughter's husband, but rather character- izes a pure estate, unconnected with any peculiarities or qualifications, — a naked es- tate, freed from every qualification or re- striction; for the most usual acceptation of absolute, when used in reference to es- tates, is not independent, but the opposite of partial or conditional. It implies not an exclusion of the husband's riglits, but an ex- clusion of the idea that the estate given is partial or conditional. Otherwise of words directing that an estate shall vest " en- tirely," " only," or " exclusively " in the wife. Johnson v. Johnson, 32 Ala. &S7. ABSQUE. Without. Occurs in phrases taken from the Latin; such as: Absque hoc. Without this. These are technical words of denial, used in pleading at common law by way of special traverse, to introduce the negative part of the plea, following the aflBirmative part or inducement. Hence a special traverse is often called a traverse with an absque hoc. Steph. PL 165, 186. Absque impetitione vasti. Without impeachment of waste. Expresses a reservation frequently made to a tenant for life, that no man shall impetere or sue him for waste committed. This reservation only excuses from permissive waste, but is never extended to allow malicious waste to the very destruction of the estate itself. Absque tali causa. Without such cause. A phrase formerly used in actions of trespass in the plaintiff's reply to a plea of the defendant, whereby the latter at- tempted to excuse the act complained of. Thus, if the defendant alleged that he committed the trespass by authority de- rived from another, the plaintiff might reply that he (the defendant) committed it de injuria (i.e. de injuria sua propria, of his own wrong) and absque tali causa, without the cause in his plea alleged. ABSTRACT OF TITLE. A mem- orandum or concise statement of the conveyances and incumbrances affecting the ownership of real property. In Eng- lish conveyancing practice, such a mem- orandum is usually prepared by the so- licitor of the vendor, and submitted to the purchaser's adviser, to enable him to decide on the validity of the conveyance tendered. In the United States, such a memorandum is usually prepared in the examination of titles involving much value ; but the duty of preparing it is not very definitely imposed on the vendor. Abstracts and indices of titles to land are subjects of literary property, so long as the compiler remains owner of the unpub- lished manuscript, and may be entered for copyright. The term abstrapt of title does not mean a mere condensed copy, but im- plies a work requiring learning, skill, and labor. Banker v. Caldwell, 3 Minn. 94. Abstract, as applied to records, ordina- rily means a mere brief, and not a copy of that from which it is taken. Dickinson v. Railroad Co., 7 W. Va. 390. Abundans cautela nou nocet. Ex- treme caution does no harm. This principle is generally applied to the construction of instruments in which superfluous words have been inserted more clearly to express the intention; as, in a deed, where the grantor adds words descriptive of the grantee or of the property conveyed, or of the condi- ABUSE ACCEPT tions of the conveyance, beyond what is absolutely necessary for the purpose. Such superfluous words can do no harm, if the instrument, when read without them, is still valid. ABUSE, V. To treat, or use, or em- ploy a thing improperly, or contrary to its nature, or to the rules governing its use. To make an extravagant or exces- sive use; as, to abuse one's authority. Abuse, n. A use which is improper; also, a custom or practice which exists contrary to good morals or propriety; as, the abuses in the civil service. Abuse of female child, is an expression equivalent to rape. Abuse of distress is a wrongful using of a thing distrained, by the distrainer. Abuse of process is a wrong employ- ment of a regular judicial proceeding. The phrase to abuse and misuse, used in an act of incorporation, was held to mean any positive act in violation of tlie cliarter, and in derogation of public right, wilfully done, or caused to be done, by those ap- pointed to manage the general concerns of the corporation. Baltimore v. Pittsburg, &c. R. E. Co., 3 PiUsb. 20. ABUT. To reach ; to touch. Abuttal: the end of a tract of land, or place where it touches the tract next to it. Strictly, or formerly, ends of a tract have been said to abut, sides, to adjoin. Abuthients : the ends of a bridge, or parts which touch the land. ACADEMY. Originally, an associa- tion formed for mutual improvement, and to advance science or art; also, a species of educational institution, of a grade between the common school and the college. La this sense, it is used in many acts of state legislatures charter- ing or providing for the incorporation of academies. ACCEPT. To receive with approval or satisfaction; to receive with intent to retain. 1. The fact of acceptance, that is, assent, is important to be ascertained in determining the validity and obligation of various contracts. Thus, one to whom a contract is proposed, and who agrees to its terms, is said to accept the pro- posal; though, for this idea, assent is a more strictly accurate term. 2. As to corporations, persons to whom a charter is offered must accept it before a corporation is created. This acceptance may be shown by circumstances, as well as by any formal declaration. Application for a charter and appearance before the legislative committee by one or more of the corporators acting by au- thority of the others, and acceptance by such corporators, is 3u£Scient acceptance of the charter. State v. Dawson, 22 Ind. 272. 3. By a familiar rule of the contract of insurance, where the insured has the right to abandon to the insurer the rem- nants of the subject insured, and then to claim as for a total destruction or loss, acceptance is applied to the assent of the insurer to the abandonment, whether formally declared, or manifested by cir- cumstances, such as acts of taking the thing abandoned into the possession of the insurer. Such acceptance operates as an acknowledgment of the sufficiency of the abandonment, and perfects the right of the assured to recover for a total loss, if the cause of the loss and material circumstances attending it have been truly made known. 4. In the law of negotiables, to accept abUl of exchange, a check, df aft, or order, is to engage to pay it according to its tenns . This engagement is usually made by writing the word " accepted" across the face of the bill. The terms acceptance and acceptor have a special signification in connection with these commercial in- struments. Acceptance, within this use, is the act or engagement of a di-awee, in accepting the biU; also, often the instru- ment itself, after it has been accepted. Acceptor is the name applied to a drawee, after he has accepted, and so has made himself liable as a promisor. Acceptance of a hill may he either ab- solute or upon a condition. An absolute acceptance is either general or qualiiied, and is usually written across the face of the bill of exchange, thus : " Accepted, payable at Messrs. , Bankers, Lon- don;" if it is to be qualified, the words, - " and not otherwise or elsewhere," are add- ed, and then follows the signature of the person accepting. If the acceptance be qualified, non-presentation of the bill of ex- change at the specified place, and in proper time, would exonerate the person who ac- cepted it, and all the other parties ; but the person who accepted it would not he exon- erated if the acceptance were general. It may be conditional, as " It will not be ac- cepted until the ship with the wheat arrives," or, " Cannot accept till stores are paid for ; " these are undertakings to accept when thei ACCEPT 8 ACCESSORIUS ship with the wheat arrives, or the stores are paid for. Wharton. The term accepted does not necessarily import a guaranty of payment by the per- son so indorsing a bill of account for goods furnished to a third party ; e. jr., by a brigade quartermaster for clothing furnished to offi- cers of the brigade. Hatch v. Antrim, 51 111. 106. A payment cannot be construed as an acceptance, under any circumstances. The two things are essentially different. One is a promise to perform an act, the other an actual performance. A banker or an individual may be ready to make actual payment of a check or draft when pre- sented, while unwilling to make a promise to pay at a future time. Many, on the other hand, are more ready to promise to pay than to meet the promise when re- quired. The difference between the trans- actions is essential and inherent First Nat. Bank of Washington o. Whitman, 94 U. S. (4 Otto) 343. Several somewhat distinct forms of acceptance are known in mercantile law. Written acceptance is the most formal and usual, but writing is not, except where prescribed by statute, in- dispensable ; there may be an oral (also called verbal), or an implied acceptance. A promise in wiiting, to accept a bill of exchange yet to be drawn, may, by numerous authorities, operate as an acceptance of the bill when drawn ; and it has been held in Central Sav. Bank V. Richards, 109 Mass. 414, that this rule embraces a promise communicated by telegraph. One who had telegraphed "You can draw for $2,500 at thirty days " was held liable as acceptor, in favor of a holder who discounted the bill on the faith of the despatch, al- though the consideration, on the ex- pectation of which the promise was made, was never supplied. Accept- ances are also distinguished as absolute, conditional, qualified, ov partial. A con- ditional acceptance engages to pay the bill oh occurrence of a designated event, as, "payable when in funds from" such and such a consignment. A qual- ified or partial acceptance introduces some limit or restriction on the amount, manner, or time, &c., of payment, as " payable in current funds; " "payable at the bank of " . There is also a kind known as acceptance for honor, or supra protest. This is where, after refusal by the drawee to accept, some person friendly to the drawer, accepts it, to save the latter's credit. AOCEPTILATIO. A gratuitous discharge. The Latin name of a spe- cies of release, whereby, under the civil law, a debtor might be released from his obligation without actual payment. ACCESS. Approach; or the oppor- tunity of approaching. Usually em- ployed, as a law term, with reference to sexual intercourse; sometimes as im- porting its occurrence ; otherwise as im- porting opportunity of communication for that purpose, or such a residence of husband and wife with reference to each other that intercourse may be presumed. ACCESSION. The acquisition of property of a concomitant nature, by virtue of the ownership of the principal to which it is accessoiy, or is attached as an incident; thus, if one man builds upon the ground of another, the right of the land-owner to the edifice is called title by accession. Other uses of the word are that the commencement of a sovereign's reign is called his accession; and if a nation becomes party to a treaty or convention already in force between others, this is called its accession to the treaty. Accessorium non ducit, sed sequi- tur, suum principale. The incident does not lead, but follows, -its principal. Where one thing is merely incident or accessory to another, the accessory be- longs to him who has the right to the principal subject; thus buildings pass by a conveyance of the land on which they are erected. Accessorium sequitur naturam rei oui accedlt. The incident follows the nature of the subject to which it is ac- cessory. If one thing becomes so inti- mately connected with or dependent upon another as to be a mere incident or accessory to the othef, it acquires the same nature or character as the subject or right to which it becomes accessory. Thus fixtures, although in their own nature personal property, if annexed to a freehold, become realty. Accessorius sequitur naturam sui principalis. An accessory follows the nature of his principal. One who is ac- cessory to a crime cannot be guilty of a higher degree of crime than his principaL ACCESSORY 9 ACCIDENT ACCESSORY. Aooompanying. That which is connected as an incident, or subordinate, with some other thing, deemed its principal. The word is used both as adjective and noun; thus the pedestal pertaining to a statue may be said to pass by a sale of the statue as ac- cessory to it, or, as an accessory. Sub- ordinate contracts, the purpose of which is to make certain the performance of some antecedent engagement, are some- times termed accessory contracts. In crimes, one who, without being a direct actor in the perpetration of an offence, or present at its performance, is concerned in encouraging or promot- ing it, or in protecting the principal offender, is termed an accessory. In this sense of the word it is often spelled accessary; and there is good authority, founded on usage, for this orthography; moreover, it is recom- mended by convenience, as distinguish- ing the application of the word to per- sons from its use as to things. Etymo- logical reasons seem to favor the form accessory. See Webster and Worcester for the discussion of this question. The distinction between principal and accessory is not recognized (unless by statutory regulation) in treason, nor in misdemeanors. In respect to ordinary felonies, it was, at common law, of much practical importance, in view of rules that the accessory could not be tried until his principal had been convicted; that he could not be convicted of a graver degree of crime than that established against the principal; and the like. But these rules have been relaxed by statute in several of the states. An accessory is spoken of as an acces- sory before the fact, if he instigates, en- com-ages, or aids in the oifence, before it is actually committed ; as an accessory after the fact, if, knowing that a felony has been committed, he receives, re- lieves, comforts, or assists the felon. If a person does no more than procure, advise, or assist a felony, he is only an ac- cessory; but if he is present, consenting, aiding, procuring, advising, or assisting, he is a principal, and must he indicted as such. Each person consenting to the commission of the offence, and doing any one act which is either an ingredient in the crime, or im- mediately connected with or leading to its commission, is a principal. United States v. Wilson, Baldw. 78, 102; United States v. Libby, 1 Woodb. Sr M. 221. To constitute an accessory af tei: the fact, the aid and assistance must be given after the felony is fully completed. Hence a party rendering assistance to another after a mortal Wow has been struck, and before death has taken place, qannot be convicted as an accessory after the fact to the mur- der: his offence is that of accessory after the fact to the crime of an assault and bat- tery with intent to kill, — the crime of mtir- der having been incomplete until the death of the person assaulted took place. Harrel V. State, 39 Miss. 702. In Scotch law, accessory action is ap- plied to an action which is ancillary or subservient to another. Accessory obligation is applied to an engagement additional to one deemed primary or an- tecedent; such as an obligation to pay interest upon an indebtedness. ACCIDENT. An unusual or unex- - pected event; the effect of an unknown cause, or an imusual effect of a known"^ cause ; that which happens without direct i human agency, or without concurrence/ of the will of the person by whose bare act it has been caused. ^'7 'iVW ^2-^ The word does not exclude casualties re- sulting from some negligence on the part of the person injured. A large proportion of the events which are usually called acci- dents' happen through some carelessness. The term properly means an event that takes place -without expectation, which either proceeds from some unknown cause, or is an unusual, and therefore unexpected, effect of a known cause. An injury which happens from negligence of a degree which does not usually produce injury, is an un- usual and unexpected result, and may be said to happen by accident. Schneider v. Provident Life Ins. Co., 24 Wis. 28. To constitute an accident or casualty, or " inevitable accident," the occurrence must be such as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed. Brown v. Kendall, 6 Cush. 292. A fire arising from negligence is not within the meaning of Stat. 6 Anne, ch. 31, § 67, as amended by Stat. 14 Geo. III. ch. 78, § 76, providing for exemption of liability for fires accidentally begun. Webb v. Rome, &c. R. E. Co.,49iV. r. 420. As used in a statute relieving a defend- ant who is prevented by accident from pay- ing a debt against imprisonment for , the debt, accident does not include ordinary misfortunes in business. Langdon o.Bowen, 46 Vl. 512. As used m Ala. Rev. Code, §§ 2814-15, allowing rehearings, it does not include mere inattention of one's counsel. Exp. North, 49 Ala. 385. ACCIDENTAL 10 ACCORD Damage done to cotton thread by damp- ness of the hold of the vessel, not occasioned by bad stowage or any negligence of those employed in the conveyance of the goods, is an " accident of navigation," within the exception in a bill of lading. Clark v. Barnwell, 12 How. 272. A bill of lading.for cotton shipped by a steamboat carrier contained the following exception : " dangers of fire and navigation only excepted." Another bill contained the following exception : " unavoidable ac- cidents of navigation and fire excepted." The cotton was burnt on board the boat. Held, that " dangers of flre," and " unavoid- able accidents of fire," meant the same thing, and that the term fire meant any fire, and was not restricted to fire originat- ing from the furnace of the boat. Swin- dler V. Hilliard, 2 Rich. (S. C.) 286. An accident is an event from an un- known cause, or an unusual and unex- pected event from a known cause ; a chance or casualty. Thus, if a railroad bed, en- gine, and cars, are in good order, and the engineer and other attendants are skilful and careful, and yet a rail breaks, that is an unusual and unexpected event from a known cause, and an accident. But if the track is out of order, and the engine worn and unmanageable, and on account thereof there is the like result, that is not an un- usual and unexpected event, but a usual and expected event from such a cause, — it is not accident, but it is negligence. Crutchfield v. Kiehmond, &o. E. E. Co., 76 N. C. 320. The fact that a non-resident heir did not hear of testator's death in season to take a timely appeal from the probate of the will cannot be deemed an accident within an act enabling appeals. Burbeck v. Little, 50 Vt. 713. ACCIDENTAL. An event may be called accidental, meaning that the cause of it is unknown; that it could not have been foreseen or predicted as the likely result of acts done or causes kno\vn to be in operation. With refer- ence to the intervention of human in- tention in producing injurious events, the chief distinctions are that an event is called accidental (sometimes casual) ■when it occurred independent of human will or means of foresight, negligent ■when it might and ought to have been foreseen and prevented; and wilful (or, somewhat more strongly, malicious), ■wheri it was intentionally caused. ACCOMMODATION. An arrange- ment or engagement made as a favor to another, not upon a consideration re- ceived; something done to oblige, usu- ally spoken of a loan of money or com- mercial paper; also, a friendly agreement or composition of differences. A proposal to sell at a price named, " terms accommodating," was held to mean that the purchase-money, or some part, might remain a while in the purchaser's hands, as if a loan for his convenience. Eice V. McLarren, 42 Me. 157. Accommodation bill or note. Ac- commodation paper is a bill of exchange which one person accepts, or a note which he makes and delivers to another with- out a pecuniary consideration as be- tween the parties, but to oblige or favor the latter, by enabling him to obtain a, discount or an increased credit. Such paper, notwithstanding the want of a con- sideration moving to acceptor or maker, is enforced against him, in favor of a purchaser for value, and before maturity. In a strict sense, the term accommodation paper imports a loan of the maker's credit, without instruction as to the manner of its use. Lenheim v. Wilmarding, 55 Pa. St. 73. ACCOMPLICE. One of persons as- sociated in the commission of a crime ; any participator in an offence, whether a principal or an accessory. The prin- cipal use of the term is in discussions involving the rules regulating the ad- mission of testimony of one particeps criminis against his fellows; in respect to which the grade of guilt of the wit- ness is generally not important, and ac- complice is an appropriate term, because it implies nothing as to gi-ade. When the conviction and punishment of offen- ders is in question, and their relative shares in the criminal act are in discus- sion, principal and accessory are oftener employed. See Accessory ; Principal. Accomplice includes all persons who have been concerned in the commission of an offence, whether they are considered, in strict legal propriety, as principals in the first or second degree, or merely as acces- sories before or after the fact. Cross c. People, 47 III. 152. ACCORD. An agreement between two persons, one of whom has a claim 7, ^^ upon the other for damages for a wrong, '"^ or for payment of an indebtedness, that something different (usually less) shall be given and received in place of what might be legally enforced. The per- formance of such agreement, by paying or delivering the substituted sum or thing, constitutes "satisfaction," and discharges the oaiginal demand. ACCORDING 11 ACCOUNT According to laMT. An averment that an affidarit was made according to law, was held to mean that it was made within the time required by law. McElhany v. Gille- land, 30 Ala. 183. A will, directing that certain property should go according to law, was held to mean that the beneficiary named should take the estate in the same manner as the law would hare given it to the testator's heirs. Mclntyre v. Eamsey, 23 Pa. St. 317. ,;/> ACCOUNT. In the most general sense, a narrative of matters past; a statement of occurrences ; more strictly, a statement of business dealings. As most often used in jurisprudence, it means a written statement of pecuniary transactions ; an exhibit of charges and credits growing out of an adventure, or of mutual dealings, in form to facilitate the precise determination, by addition of columns, of the sum or balance due. Account implies mutual dealings, and the existence of debt and credit. McWilUams 1). Allan, 45 Mo. 573. It implies that one is responsible to an- other, either on the score of contract or of some fiduciary relation of a public or private nature, created by law or otherwise; and cannot include a claim to have taxes on land refunded, on the ground that they were excessive through the wrongful and illegal conduct of the assessor. Stringham v. Win- nebago County, 24 Wis. 594. It means a list or catalogue of items, whether of debts or credits. Eensselaer Glass Factory v. Reid, 5 Com. 587. There is a broad distinction between an account and the mere balance of an account. A balance is but the conclusion or result of the debit and credit sides of an account. McWilliams v. Allan, 45 Mo. 573. The word is sometimes used for the demand or right of action for the balance appearing due upon a statement of deal- ings ; as where one speaks of an assign- ment of accounts. A bequest of "all my accounts" was held not to include a savings-bank account. Gale V. Drake, 51 N. H. 78. The word is often used in the sense of behalf, or charge; as in saying that an agent acts upon account of his principal; that a policy is issued on account of whom it may concern. Long account. A claim to several items of damage for a wrong is not an ac- count, witliin a statute authorizing a refer- ence of an action involving a long account. Sharp V. Mayor, &e. of N. Y., 9 Abb. Pr. 436 ; Dewey v. Field, 13 Haw. Pr. 437 ; Boss V. Mayor, &c. of N. Y., 2 Abb. Pr. n. s. 266. An action given by statute to recover from a city or county damages incurred by the plaintif from a mob or riot, though in- volving a large number of items of damages, is not an action involving the examination of a long account. Ross v. Mayor, &c. of N. Y., 2 Abb. Pr. n. s. 266; 32 How. Pr. 164, A bill of particulars is not an account, in the sense of the statute authorizing a refer- ence. Dickinson v. Mitchell, 19 Abb. Pr. 286. Mutual accounts. This phrase is used in provisions in many statutes of limitations, declaring that, when the suit is founded upon mutual accounts, the time for suing may be reckoned from the last item proved ; or the like. Such provisions call for an account of each party involving original charges against the other. The exception in the statute of limitations requires an account in writing. Theobald v. Stinson, 38 Me. 149. Where the items of an account are all on one side, it is not a mutual, open, or current account, within the meaning of the statute of limitations. Fraylor v, Sonora, &c. Co., 17 Co/. 594. An account where there are no credits except payments is not mutual, open, and current within the statute. Prenatt v. Run- yon, 12 Jnd. 174; Weatherwax v. Cosum- nes, &c. Co., 17 Cal. 344; Adams i). Patter- son, 35 Id. 122; Dyer v. Walker, 51 Me. 104; Peck v. N. Y. &c., S. S. Co., 5 Bosw. 226. Open account, is one in respect to which nothing has occurred to bind either party by its statements; an ac- cotmt which is yet fuUy open to be dis- puted. But the phrase is also found in other senses. It sometimes designates an account of dealings which are stiU. continuing; so that the account is open to further charges. It sometimes seems equivalent to mutual account ; as mean- ing an account open to entries by either party. ' Where there have been running or cur- rent dealings between the parties, and the account is kept open with the expectation of further dealings, the account is said to be open. Goodwin v. Harrison, 6 Ala. 438. An open accotmt is one in which some item of the contract is not settled by the parties, whether the account consists of one item or many; as where several loads of corn are sold at the same time and de- livered, and there is no stipulation as to the price, the account is open. Sheppard v. Wilkins, 1 Ala. 62. Account rendered, is one which, hav- ing been drawn up in form, is delivered by the creditor to the debtor as an exhi- bition of his demand, on a basis of a settlement between the two. It does not absolutely conclude the creditor ; for, ACCOUNT 12 ACCOUNT until the debtor has accepted or acted upon it, there is no mutuality of obliga- tion, and therefore no estoppel. Account stated is an account which has been rendered by the creditor, and has been by the debtor assented to as correct, either expressly, or by implica- tion of law from the failure to object. Stated or liquidated accounts are those which have been examined and adjusted by the parties, and where a balance due from one of them has been ascertained and agreed on as correct. M'Lellan v. Crofton, 6 Me. 308. Account stated involves an agreement, by both parties, that all the articles in an ac- count are true. Stebbins v. Niles, 25 Miss. 267; Lockwood v. Thome, 12 Barb. 487. See s. 0. 11 N. Y. 170 ; 18 N. Y. 285. An account merely rendered by one party against another is not an account stated be- tween the parties. Spangler v. Springer, 22 Pa. St. 454. To support a plea of a stated account, the evidence must show that the accounting was final ; and that the accounts have been examined, and the balance admitted as the true balance between the parties. Bussey V. Gant, 10 Humph. 238. To make an account stated, there must be a mutual agreement between the parties as to the allowance or disallowance of their respective claims ; and to establish such an account, so as to preclude a party from im- peaching it, save for fraud or mistake, there must be proof of assent to the account as rendered, either express or implied from failure to object within a reasonable time after presentation. Stenton v. Jerome, 54 N. Y. 480. The admission need not be in writing. James v. ]?eUowes, 20 La. Ann. 116. To constitute an account stated, it is not necessary that there shoxild be mutual or cross demands. They may be all on one side, or consist of charges and the acknowl- edgment of payment. The simple render- ing of the items of an account between the parties, and the striking of a balance, or agreeing upon the amount due, is sufficient ; and upon such a state of facts an action on an account stated may be maintained. Where plaintifi went over the account in the de- fendant's presence, and found a certain sum due to the plaintiff, and the result was not objected to by the defendant, it was held that this was an account stated. Kock v. Bonitz, 4 Daly, 117. Accountable. Liable to the demand of an account ; under obligation to dis- close one's acts or transactions to an- other. A provision, making an officer account- able to another, may imply authority vested in the latter to deprive him of the office. McPhiUips V. McPliiUips, 9 R. I. 536. Accountant. One whose vocation or function it is to keep or adjust accounts. Usually implies somewhat more of au- thority to pass upon the items or deter- mine the balance than is involved in "book-keeper." Accounting. Rendering or deliver- ing a formal statement of one's dealings ; usually employed in reference to a state- ment required by a creditor party as a basis of enforcing his claim for a balance due. To enforce an accounting is an impor- tant branch of equitable jurisdiction, ex- ercised upon what is called a bill for an account. By means of this description of suit, one who would be unable to sue at law, because unacquainted with the nature and amount of the dealings out of which his rights arise, may obtain a statement of them, and a decree for pay- ment. Action of account; also sometimes called account render. A vsrit or form of action allowed by the common law against a person who by reason of some fiduciary relation or office, such as that of collecting agent, guardian, or the like, was bound to render an account to an- other, but refused to do so. A leading peculiarity of the action was, that first (if the plaintiff established his right) a judgment was taken that defendant do account, then followed an accounting before auditors ; and upon the result of this a second judgment was passed, for payment of the balance shown due. Reeves says that in the old law the action of account, or "accompt," di- vided with debt the jurisdiction over contracts, but was gradually disused as assumpsit grew into fashion; the latter being preferred because it did not admit defendant to wager of law. 3 Reeves Hist, by Finlason, 408. This reason diminished as wager of law was disused. Accordingly in later years there was some revival of account in England. Throughout the United States in gen- eral it has not been a remedy in com- mon use. In New York, it was allowed by a joint tenant or a tenant in common, by 1 Rev. Stat. 750, § 9. But Judge Bronson in MoMurray i'. Eawson, 3 Hill (N. Y.), 59, pronounced it "one of the most difficult, dilatory, and ex- pensive actions that ever existed," said ACCOUNT 13 ACCUMULATE that it had been only once brought in the state before, and predicted that the case then at bar would be the last. It seems abrogated wherever codes of re- formed procedure have been enacted. Action of book account. This ac- tion, also sometimes styled action of book debt, is allowed by statute in some of the states as a ready remedy for the collection of a balance due upon an ac- count. It is not, like the common-law action of account, or a due-bill in equity for an accounting, a remedy for obtain- ing from a debtor a statement of his concealed dealings, upon which he has become indebted to the plaintiff; but is a remedy allowed to a creditor for the collection of the sum shown to be due, by his own accounts, upon his sales, &c., to the debtor. It is allowed, in general, only upon dealings and transactions such as are, by ordinary usage, proper matters of book account; such as goods sold; services; labor and materials. The ac- tion is aided by enactments allowing the creditor to produce his own accounts, attested by his oath to their correctness, and by them to establish his right to re- cover. This species of action has been largely used in Connecticut and Ver- mont, and exists in some other states. ACCOUNTANT-GENERAL. An officer of the English court of chancery, appointed by act of parliament to re- ceive all money lodged in court, and to place the same in the Bank of England for security. He has been superseded by the "paymaster-general." There has been a similar officer connected with the court of chancery in Ireland. ACCREDIT. To acknowledge as an authorized ambassador or diplomatic agent. Strictly, the word means an acknowledgment by the government to which the minister is sent. When such government accepts his credentials, and recognizes him as the messenger of his nation, he is properly said to be accred- ited. But it is also used of the act of the nation sending a minister, in conferring authority and giving credentials. Web- ster recognizes this sense of the word; but in the only instance given it might bear the other meaning. ACCRETION. The gradual increase of land, through the operation of natural causes; such as the action of rivers or of the sea. The deposit itself is usually called alluvion. ACCROACH. To attempt to exercise power without authority; said especially of the attempt to exercise royal power. 4 Black. Com. 1Q\ 2 Reeves' Hist. Eng. Law, i51; 2 Id. 186, 197. ACCROCHE, signifies to encroach, and is mentioned in the statute 25 Ed. III. ch. 8, to that purpose. The French use it in the sense of delay; as accrocher un proch, io stay the proceedings in a suit. ACCRUE. To come into existence, as a right or demand. Originally, it seems to have been used chiefly of an accessory demand, arising upon another as a principal ; thus interest accrues to principal, or accming costs are costs added to a judgment when execution is issued. But it is now used equally of independent original demands ; as when a cause of action is said not to have ac- crued to the plaintiff vrithin six years, and therefore to be outlawed. Accrued is used in the Ohio wills act, § 79, as equivalent to vested, and implies that something has been imparted to or conferred upon a third person, over which he may have the immediate control by pos- session, or the present right to future pos- session, of which he cannot be deprived without his assent. Hartshorne v. Boss, 2 Disney^ 16. In some cases wages may properly he said to accrue on a customary monthly pay- day, rather than at the end of the perform- ance of the work. Mundt v. Sheboygan, &c. E. R. Co., 31 Wis. 451. Clause of accruer. This is an express clause, frequently occurring in the case of gifts by deed or will to persons as tenants in common, providing that upon the death of one or more of the beneficiaries his or their shares shall go to the survivors or survivor. _ It is a rule of law that there is " no survivorship upon survivorship ; " i.e., that the_ clause of accruer extends only to the original, not also to the accrued, shares, unless in terms it is expressly made to ex- tend to the latter also, which it customarily is made to do. Pain ti. Benson, 3 ^(t. 80 ; Brown. ACCUMULATE. To gather or col- lect in quantity. Accimaulation : the act or process of gathering in quantity; or the sums or things which have been so gathered. When the interest of a fund, instead of being paid over to some per- son or persons, is itself invested as often as it accrues, so as to be reserved for the ACCUMULATIVE 14 ACKNOWLEDGE benefit of some person or persons in the future, the income is said to be accumu- lated, and a direction for this purpose in a deed or will is called a direction for accumulation. Important restrictions have been imposed by statutes, and by the course of decisions of the courts, upon the power of the owner of a capital sum to direct by deed or will the accumula- tion of its income in hands of trustees. ACCUMULATIVE. See Comula- TIVB. Accumulative judgment. A judg- ment sentencing a person to imprison- ment for a term to commence after a previous sentence shall have been satis- fled. By the common law Buch a judgment could only be given in cases of misdemean- ors, and not upon convictions for felony, the party attainted of felony becoming thenceforth dead in law. Latterly, how- ever, by Stat. 7 & 8 Geo. IV. ch. 28, § 10, the court was empowered to pass a second sen- tence, to commence after the expiration of the first, in a case of felony ; and under the criminal statutes at present in force (24 & 25 Vict.) such accumulative punishments are in general use, not exceeding three in all. Brown. Accusare nemo debet se. No one is bound to accuse himself. A maxim more frequently expressed in, the form, Nemo tenetur se ipsius accusare, q. v. The principle etnbodied is fundamental in th^cfimiuariaw. , Accu^ator post rationabile tempus non est audlendus, nisi se bene de omissioae ezcusaverit. An accuser ought not to be heard after the expira- tion of a reasonable time, unless he can account satisfactorily for the delay. ACCUSE. To make a charge against a person of the commission of a crime, or of gross misconduct ; usually spoken of the formal preferring of a charge be- fore an oflBcer or tribunal competent to proceed towards the punishment of the offender. Accuser : the person by whom such charge is made. Accused : the per- son against whom it is made. Accusa- tion: the charge itself; also, the act of preferring it. Accused is the generic name for the de- fendant in a criminal case, and is more ap- propriate than either prisoner or defendant. Hex V. McNaughten, 1 Car. ^ K. 131. Ac etiam. And also. Technical words used to introduce the clause re- quired in former English common-law practice to be inserted in the writ, in cases where defendant was to be held to bail, for the purpose of apprising him of the true cause of action. This entire clause was commonly called the ac etiam clause. The ac etiam clause was a form or fiction of law adopted first in the queen's bench, and afterwards in the common pleas, to give jurisdiction to these courts in actions for ordinary debts. The bill of Middlesex in the queen's bench being framed only for actions of trespass, and the statute, 13 Car. II. St. 2, ch. 2, having required that the true cause of action should be expressed in the writ or process, the court of queen's bench was in danger of losing its entire jurisdic- tion in matters of debt; to obviate that re- sult, the ac etiam clause was invented. And some few years afterwards. North, C. J., di- rected that in the common pleas the like fic- tion should be added to the usual complaint of breaking the plaintiff's close. But since tlie uniformity of process act (2 Wm. IV. ch. 39) the necessity for this fiction has ceased. Brown. ACKNOWLEDGE. To own, avow, or admit. Acknowledgment: an avowal or admission. Sdl/bu/ ^•^(^ Thus, under most statutes of limita- tions, an acknowledgment of a debt, if clear, explicit, and unconditional (by several of the statutes it must be in writing), will remove the bar of the statute, and enable the creditor to sus- tain an action, notwithstanding the lapse of the statute time. Acknowledge does not necessarily im- ply words. Bailey v. Boyd, 59 Ind. 292. In conveyancing, acknowledgment is used either of the act whereby one for- mally avows or declares before an officer authorized to give an evidential certifi- cate of the declaration, that an instru- ment executed by him is his act and deed ; or of the certificate of the officer attesting such an avowal. The statutes of the states regulating transfers of real property very generally require that con- veyances shall be thus acknowledged by the grantor, or that, as an equivalent, proof of genuine execution shall be made by oath of a subscribing witness, before the deed can be admitted to rec- ord; and, further, that where the grantor is a married woman, her acknowledg- ment shall be taken upon a private ex- amination, separate and apart from her A CKNO WLEDGMENT 15 ACT husband, and shall include an assurance to the effect that she has signed the deed freely, and without fear or compul- sion of her husband. The sufficiency of these certificates of 'acknowledgment must be tested by the requirements of the law — generally statute law — of the state within which the land conveyed lies. Acknowledgment (and more fre- quently admission), is used of a per- son's conceding the truth of facts which render him civilly liable ; for an admis- sion of criminal acts, confession is more appropriate. Ackno-wledgment money. A sum paid in some parts of England by the copyhold tenants, on the death of their landlords, as an acknowledgment of their new lords; in like manner as money is usually paid on the attorn- ment of tenants. Jacob. ACQUIESCE. To consent by si- lence, or without an express acknowl- edgment or declaration. Acquiescence : a consent inferred from silence, or from omission to object. Such silent consent may, upon well- settled principles of equity jurispru- dence, debar the party from obtaining special discretionary relief, which that court might otherwise grant him; and in cases where an innocent person has been led to act upon it to his injury, if it should be withdrawn, the person ac- quiescing is held bound at law, as well as in equity, on the principle of estoppel. A vote passed by the corporate author- ities of a college, that they acquiesced in a statute altering the charter, was held not to import their assent, such as would render the amendment obligatory, but to imply mere submission to the will of the legisla- ture. AUcn u. McKeen, 1 Stiinn. 276. AOQUIETANDIS PLEGIIS. The name of an obsolete English writ. It lay for a surety against the creditor who refused to acquit him after the debt was satisfied. ACQUIT. To release or discharge one from an obligation or a liability. Acquittal : the legal act of setting one free from a charge; most frequently used of a verdict of a jury (or finding of a magistrate authorized to try, instead of a jury, the question of guilt in fact), rendered upon trial of an indictment or , criminal complaint, declaring the ac- cused to be not guilty. But what is termed an " acquittal in law " may take place by mere operation of law; as where one charged as an accessory only is discharged by a verdict acquitting his principal. Acquitted. Set free; judicially dis- charged from accusation; released from debt, &c. Includes both civil and criminal prosecutions. DoUoway v. Turrill, 26 Wend. 383, 399. ACQUITTANCE. A writing, ac- knowledging that a person has paid a debt or become discharged from an obli- gation or engagement, usually a pecu- niary one. A discharge, in writing, of a sum of money, or debt due ; as, where a man is bound to pay rent, reserved upon a lease, &c., and the party to whom due, on receipt thereof, gives a writing under his hand, wit- nessing that he is paid. Jacob. Where A, having possession of a bank- er's receipt given upon a deposit of money, and conditioned that the money should be repaid on redelivery of the receipt, wrote the name of the depositor across the face of the receipt, and delivered it up to the banker, and thereby fraudulently obtained the money, it was held he might be con- victed of having forged an acquittance. Reg. V. Atkinson, 2 Moo. Cr. Cos. 215. ACROSS. May mean over, in either direction: it does not exclude the idea of passing over in the longest direction. A reservation in a deed of a right of way across the land is not necessarily to be con- fined to a right to cross the lot by its nar- rowest dimensions, but should be construed to give a right to cross at such points as will effectuate the actual intent of the parties. Brown v. Meady, 10 Me. 391. ACT, n. In the most general sense, something done; the exercise of power, or an effect produced by power exerted. In several uses " act " and " action " have the same meaning; but act is used technically to designate determinations of aggregate bodies. " The action of a legislature" is a more general phrase than "the act of" the legislature. Act implies intention. Thus act and intention, as used in a policy of life insur- ance, restricting the liability of tlie com- pany, in case the death of the insured be caused by " his own act or intention," mean the same thing. Chapman v. Repuljlic Life Ins. Co., 6 Biss. 238. In a special sense, act is used of a formal solemn writing, expressing that something has been done; as in the form of words used in acknowledg- ments, when a grantor declares that the ACT 16 ACT instrument is his act and deed. This use of the word is especially frequent in jurisdictions following the civil law, where many kinds of instruments are familiarly known as acts, and are classed as private acts or public acts, the latter being solemnized before some public officer, and having a higher effect and operation. Act in pais. A thing done out of court (anciently, in the country) ; some- thing not matter of record. See Pais. Act of attainder. A legislative act, attainting a person. See Attainder. Act of bankruptcy. The various bankrupt laws which afford a proceed- ing at the instance of creditors to com- pel the application of a debtor's prop- erty to their demands contain an enumeration or definition of acts of a debtor which expose him to these com- pulsory or involuntary proceedings ; and these acts are known as acts of bank- ruptcy. In the existing bankrupt law of the United States these are to be found ii;i the act of June 22, 1874, 18 Stat, at L. 178. The enumeration, in substance, in- cludes any person: Who departs from the state, &c. , of which he is an inhab- itant, with intent to defraud his cred- itors ; Who, being absent, remains absent, with such intent; Who conceals himself, to avoid the service of legal process, &c. ; Who conceals or removes any of his property, to avoid its being attached, &c. ; Who makes any assignment, &c., of his estate, property, &c., with intent to delay, defraud, or hinder his creditors ; Who has been arrested and held in custody under process out of any court where he resides or has property, found- ed upon a demand provable against a bankrupt's estate, and for a sum ex- ceeding one hundred dollars, such pro- cess remaining in force for a period of twenty days, or who has been actually imprisoned for more than twenty days in a civil action founded on contract for the sum of one hundred dollars or up- ward; Who, being bankrupt or insolvent, or in contemplation of bankruptcy or insol- vency, makes any payment, gift, or other transfer of money or other prop- erty, &c. , or confesses judgment, or pro- cures his property to be taken on legal process, with intent to give a preference to creditors, or to persons liable for him aa indorsers, &c., or with the intent to defeat or delay the operation of the bankrupt laws ; Who, being a bank, banker, broker, merchant, trader, manufacturer, or min- er, has fraudulently stopped payment, or has stopped or suspended and not re- sumed payment within a period of forty days, of his commercial paper; Or who, being a bank or banker, fails for forty days to pay any depositor upon demand of payment lawfully made. The English bankruptcy act of 1869, § 6, enumerates the following as acts of hank- ruptcy : A general conveyance or assignment by the debtor in trust for his creditors ; Af raudulent conveyance ortransferbythe debtor of the whole or part of his property ; The debtor's having done any of the fol- lowing things, with intent to defeat or delay his creditors, namely : departed out of Eng- land; remained out of England; being a trader, departed from his dwelling-house ; begun to keep house ; or suffered himself to be outlawed ; The debtor's having filed in court a dec- laration of his inability to pay ; The levying of an execution for not less than fifty pounds against the debtor, by seizure and sale of his goods ; The debtor's having neglected, if a trad- er, for seven days, and if not a trader, for twenty-one days, after service thereof, to pay or to secure or compound for the amount (not being an amount under fifty pounds) demanded on the debtor's sum- mons of the petitioning creditor. Brown. Act of congress; of the legisla- ture; of parliament. Usually em- ployed as meaning a law passed by either legislative body ; or as equivalent to Statute, q. v. "The statutes of the United States have, however, for many years been published in two classes, — the acts and the resolutions; importing that a resolution is included in the term stat- ute, but not in the word act. In England, it was formerly, at least, considered that all the enactments of a parliament at one session formed one act; each dis- tinct bill, as passed, becoming a chap- ter in the act. But this is not the gen- eral usage of the term in American leg- islation, in which the matter of each ACT 17 ACT bill, when passed and approved, becomes an act, and is published and known, or- dinarily, as the act of the day on which executive approval is given ; though all the acts of a session are often designat- ed and numbered as chapters in the stat- ute-book. Many acts become distinc- tively known by their subject-matter; as the act of supremacy, the toleration act, the act of uniformity, the bank- rupt act, the patent act, the merchant shipping act. Acts of legislation are classified as public or private, general or local, and the like; as to which see Statutes. The words " act of the congress " are as strong and unequivocal as " statute of the congress." United States v. Smith, 2 Mas. 143, 181. Act of God. A phrase used to des- ignate a cause of injury or loss, or an in- terference with the fulfilment of a duty or engagement with which voluntary or intentional human agency has not been connected, and which could not have been prevented by exercise of hu- man care or foresight, and for which, therefore, man ought not to be held responsible. See Actus Dei. In mo- dern times, either because the phrase has seemed to savor of irreverence, or from a growing disinclination to impute events to directly exerted divine action, merely because their causes and laws are not known to man, other expressions have been substituted, such as vis major ; casus fortuitus; and particularly inevi- table accident. This latter term, said to have been proposed by Sir William Jones, is believed to be now in very general use as equivalent to act of God ; though Bouvier (without, however, pointing it out) says that there is a distinction between the two. See In- evitable Accident. The cases discussing the phrase are, most of them, cases in which common carriers have sought an exemption from liability on the ground that the loss was attributable to the act of God. The phrase act of God means the oper- ations of nature, unmixed with human agency or human negligence. To render the excuse valid that a loss or injury hap- pened from the act of God, such loss or injury must he traceable immediately to tlie operations of nature, and must have resulted from inevitable necessity, which no human prudence could foresee or pre- vent. Coosa River Steamboat Co. v. Bar- clay, 30 Ala. 120. It means something superhuman, or something in opposition to the act of man. Chicago, &c. R. R. Co. v. Sawyer, 69 ///. 285; Merchants' Despatch Co. v. Smith, 76 III. 542. It denotes natural accidents, such as lightning, earthquakes, and tempests ; but its signification is more general, and era- braces all other unavoidable or inevitable accidents. Walpole v. Bridges, 5 Blackf. 222. It means some natural necessity, which cannot be occasioned by the intervention of man, but proceeds from physical causes alone, such as the violence of the winds or seas, lightning, or other natural accident. New Brunswick Steamboat, &o. Co. v. Tiers, 24 N. J. L. 697, 700; Merritt «. Earle, 29 N. Y. 116. It excludes all human agency. Merritt V. Earle, 29 N. Y. 115. It includes those losses and injuries which are occasioned exclusively by nat- ural causes, such as could not be prevented by human care, skill, and foresight. All the eases agree in requiring the entire ex- clusion of human agency from the cause of the injury or loss. If the loss or injury happen in any way through the agency of man, it cannot be considered the act of God ; nor even i£ the act or negligence of man contributes to bring or leave the goods of the carrier under the operation of nat- ural causes that work their injury, is he excused. In short, to excuse the carrier, the act of God, or vis divina, must be the sole and immediate cause of the injury. If there be any co-operation of man, or any admixture of human means, the injury is not, in a legal sense, the act of God. Mi- chaels V. N. Y. Central R. R. Co., 30 N.. Y. 564. Act of God includes : The grounding of a vessel on a concealed shoal or bank, if inevitable ; that is, if not to be ^voided by a competent share of skill and diUgence. Morel V. Roe, R. M. Charlt. 19. A sudden failure of the wind. Colt v. McMechen, 6 Johns. 160. A freshet. New Haven & Northampton Co. V. Qumtard, 6 Abb. Fr. N. s. 128 ; 37 How. Pr. 29. It does not include: An accidental fire, although extending to conflagration of a city, and arising without any default of the carrier. Miller v. Steam Nav. Co., 10 N. Y. 431 ; Gould v. Chapin, 10 Barb. 612 ; Niblo V. Binsse, 44 Barb. 54 ; Merchants' De- spatch Co. V. Smith, 76 111. 542. A loss occasioned by a vessel's ground- ing in a storm, being misled by the absence of one of the usual hghts, and the presence of a misguiding light; for no matter what degree of prudence may be exercised by the carrier and his servants, although the delu- sion by which it is baffled, or the force by which it is overcome, be inevitable, yet if it be the result of human means, the cap ACT 18 ACTIO rier is reeponsible. MeArthur v. Sears, 21 Wend. 190. Collision with a sunken wreck, visible above the surface, although the wreck was sunk in the channel only a day or two be- fore the collision, and by a sudden squall. Merritt i). Earle, 29 N. Y. 115. The shifting of a buoy by some supposed natural cause, which causes the loss of a vessel. Reaves v. Waterman, 2 Spears, 197. The freezing of perishable articles by reason of an unusual intensity of cold, if the loss might have been prevented by the exercise of diligence and care. Wing v. N. Y. & Erie K. R. Co., 1 Hilt. 235. Act of grace, is often used to desig- nate a general act of parliament, origi- nating with the crown, such as has often been passed at the commencement of a new reign, or at the close of a period of civil troubles, declaring pardon or am- nesty to numerous offenders. In Scotch law, it designates a particular statute, passed in 1696, under which a creditor, enforcing his right to imprison his debt- or, was compellable to provide for his subsistence. Act of indemnity. A statute passed for the protection of those who have committed some illegal act, subjecting them to penalties. Such acts have been frequently passed in favor of officers who have acted in good faith in the dis- charge of their duties, but without some qualification required by law; or in a manner technically illegal; or in excess of the powers strictly vested in them; and who have thereby become liable to consequences from which, in judgment of the legislature, they ought to be re- lieved. Act of la-w. The operation of legal rules upon given facts or occurrences; as when it is said that a son succeeds to his father's estate by the act (or, more appropriately, operation) of law. Acta of sederunt. Ordinances of the court of session, in Scotland, enacted under the act of 1540, ch. 93, which authorized making such statutes as might be found necessary for ordering process and expedit- ing justice. Bell. Act of settlement The Stat. 12 & 13 Wra. III. ch. 2, limiting the crown to the Princess Sophia of Hanover, and to the heirs of her body being Protestants, is usually termed, in books of English constitutional history and jurisprudence, the act of settlement. Acta eaEteriora indicant interiora secreta. Outward acts indicate inward purposes. Acts are deemed to indicate the intention of the actor. Thus, in criminal cases, where the intent and the act must concur to constitute the crime, the intention can only be inferred from the acts of the accused, considered with other circumstances. In cases where a civil remedy is sought for injuries, and where malice must be proved, the acts and expressions of the defendant are the best and often the only evidence of his malicious intent. Malice may even be presumed from the mere act causing the injury, as in actions for damages for slander, where the making a slanderous statement, shown to be untrue, raises a presumption of malice. Similar rules of evidence as to fraudulent intent are within the same general principle. The most frequent application of the maxim, however, is to cases where a previous intention is judged of by subsequent acts; as where an officer or other per- son acting under an authority given him by law, and properly entering upon the exercise of his authority, subsequently is guilty of a trespass, he becomes a trespasser ab initio; the law judging by such subsequent trespass with what in- tent the original act was done. Broom's Max. 301. ACTE. In French law, denotes a doc- ument, or formal, solemn writing, embody- ing a legal attestation that something has been done corresponding to one sense or use of the English word act. Thus, aetes de naissance are the certificates of birth, and must contain the day, hour, and place of birth, together with the sex and intended christian name of the child, and the names of the parents and of the witnesses. Actes de mariage are the marriage certificates, and contain names, professions, ages, and places of birth and domicile of the two persons marrying, and of their parents; also the consent of these latter, and the mutual agreements of the intended husband and wife to take each other for better and , , worse, together with the usual attestations. Actes de dices are the certificates of death, which are required to be drawn up before any one may be buried. Les actes de V €tat civil are public documents. Brown. ACTIO. A civil-law term vei^ near- ly corresponding to, and evidently the original of "action " as employed under eommon-law systems. It may signify either a right such as is enforceable by ACTIO 19 ACTIO judicial proceedings, or a judicial pro- ceeding for the enforcement of a right. That is, it means either a right of action, or an action in the sense of ac- tion at law, according to the context. The notion of a legal proceeding was the one attached to the term in its earli-. est use in Roman law, anji it is in this sense that it is oftenest used in quotar tions from common-law books written in Latin, and in the names of civil-law proceedings and remeflies. A very large number of different species of actio, tak- ing the word in the sense of a general tei-m for civil-law judicial proceedings, are enumerated. Names of the more important of these are given below; not as an exhaustive list, but as indicating the general method of the nomenclature and some similarities between the civil and the common-law classifications. Actio ad exhibendum. Action for exhibiting. A civil-law action to com- pel defendant to produce or exhibit something which was necessary to ena- ble plaintiff to prosecute some other action. What the interdict was to immovables that the actio ad exkibendum was to mov- ables. Its purport was simply to have the property In dispute produced in court; but as no one could succeed in that who could not show some interest in the prop- erty, the question of ownership was virtu- ally raised and often practically decided in the preliminary action. Such was not its ostensible object, for in reality the actio ad exhibendum was only a personal action, not an action in rem ; but it was a preliminary that often rendered any further steps un- necessary. Hunt. Rom. L. 189. Actio aestimatoria. Actio quanti minoris. Two names of an action which lay in behalf of a buyer to reduce the contract price, not to cancel the sale; the judex had power, however, to cancel the sale. Hunt. Rom. L. 332. Actio arbitraria. Action depending on the discretion of the judge. In this, unless the defendant would make amends to the plaintiff as dictated by the judge in his discretion, he was liable to be condemned. Hunt. Rom. L. 825. Actio bonae fidei. Action of good faith. The name of a class of actions in which the adjudication might be governed by natural equity and justice; much resembling in general nature the suits in equity of English law. In proceedings horm fidei (equitable) free power is allowed to the judex to fix the value that ought to be given up to the plaintiff on the ground of what is fair and right, including the power to take an ac- count of what it appears the plaintiff ought to furnish in turn on the same ground, and to condemn the defendant to pay the bal- ance. — Hunt. Rom. L. 832. Actio calnmniae. An action to re- strain the defendant from prosecuting a groundless proceeding or trumped-up charge against the plaintiff. Hunt. Rom. L. 859. Actio civilis. Actio directa. Two expressions which designated the actions which proceeded directly, i. e. , unswerv- ingly, according to the written civil law, as distinguished from some which originated as a voluntary exercise of the power of magistrates to enforce justice. They corresponded somewhat to tho English common-law action, as con- trasted with a suit in equity. Actio commodati. Included several actions appropriate to enforce the obli- gations of a borrower or a lender. Hunt. Rom. L. 305. Actio communi dividundo. An action to procure a judicial division of joint property. Hunt. Rom. L. 194. It was analogous in its object to proceed- ings for partition in modern law. Actio damni Injuria. A general phrase corresponding to the modern " action for damages." It embraced a great variety of actions for losses sus- tained from wrongful, including negli- gent, acts. Hunt. Rom. L. 97. Actio de dolo. Actio de dolo malo. Actions arising but of fraud were designated by these expressions. Actio de pecunia constituta may be brought against any one that has engaged to pay money, either for himself or another, without any stipulation coming m ; if he has promised to be a stipulator he is liable under the jus civile. Hunt. Rom. L. 886. Actio deposit!. Included several actions appropriate to enforce the obli- gations of a depositary, or a depositor. Hunt. Rom. L. 308. Actio directa. Actio contraria. These civil-law terms related to a dis- tinction between the remedy for enforc- ing a main or principal obligation and the one allowed for enforcing a counter obligation. They embody much the ACTIO 20 ACTIO same idea as is indicated in Anglo- Saxon jurisprudence by the terms origi- nal and cross bill on action. See also Actio Civilis, supra. Actio empti. An action employed in behalf of a buyer to compel a seller to perform his obligations or pay compen- sation ; also to enforce any special agree- ments by him, embodied in a contract of sale. Hunt. Rom. L. 332. Actio ex contractu. Action from contract. Actio ex delicto. Action from wrong. This division of actions, in civil law, corresponded, in general nature, to that which was maintained in common-law jurisprudence between actions of contract and of tort. Actio ex stipulatu. Under the civil law, a promise unilateral, or unsup- ported by any counter-promise as a con- sideration, might be made legally bind- ing when given in due form of question and answer. Such a promise was called a stipulation, and an action to enforce one was an action ex stipulatu. Hunt. Rom. L. 285. Actio furti. This expression includ- ed a variety of civil remedies for theft. Hunt. Civ. L. 180. Actio ill personam. Action towards the person. Actio in rem. Action towards the thing. If the immediate method and effect of the suit was upon the defendant, the first phrase applied ; if upon specific property, the second. The same distinction has been main- tained in modem admiralty practice, and the distinction between personal and real actions in the common law is very analogous. Actio injuriarum. Included a va- riety of actions for personal injuries, those inflicted upon the wife, slave, or other person, in whose security the plaintiff had an interest, as well as those upon the plaintiff directly. Actio mandati. Included actions to enforce conti-acts of mandate, or obligar tions arising out of them. Hunt. Rom. L. 316. Actio negotiorum gestorum. In- cluded actions between principal and agent and other parties to an engage- ment, whereby one person undertook the transaction of business for another. Actio quanti minoris. See Actio .SlSTiMATORiA, supra. Actio redhibitoria. An action to cancel a sale in consequence of defects in the thing sold. It was prosecuted to compel complete restitution to the seller of the thing sold, with its produce and accessories, and to give the buyer back the price, with interest, as an equivalent for the restitution of the produce. Hunt. Rom. L. 332. Actio stricti juris. Action of strict right. The name of a class of actions under the civil law, the decision of which was governed by the very terms of the defendant's contract or engage- ment, without power in the judex or tribunal charged with ascertaining the facts and making application of the law to them, to exercise any equitable dis- cretion. Actio tutelae. Included various actions founded on the claims or obliga- tions arising on the relation analogous to that of guardian and ward. Actio venditi. An action employed in behalf of a seller, to compel a buyer to pay the price, or perform any special obligations embodied in a contract of sale. Hunt. Rom. L. 332. Actio non accrevit infra sex annos. Right of action did not accrue within six years. This phrase is not, like the preceding ones, a name of a class of civil-law actions, but is the distinctive phrase of the plea by which, in Latin forms of common-law pleading, the defendant claimed the benefit of the statute of limitations, A similar plea, more particularly appropriate in as- sumpsit, was non assumpsit infra sex annos; he did not contract within six years. Actio personalis moritur cum persona. A personal right of action dies with the person. Under this prin- ciple, actions for mere injuries to the person, the feelings, or the reputation, such as assault, libel, and slander, abate finally on death of the plaintiff before verdict; while rights of action founded on contract or on injuries to propei-ty survive, and may be prosecuted by his representatives. The principle was for- merly much more broadly held than at the present day. ACTION 21 ACTION Actionem non habere. Actionem non ulterius habere. These phrases were formerly used in the commence- ment of common-law pleas. The one signified that the plaintift ought not to have an action, because, &c., introduc- ing the facts relied on as a defence; and was often called, briefly, the actio non. The other signified that plaintiff ought not to have an action further, and was called the actio non ulterius. ACTION. The employment of this d)fword in its vernacular sense of conduct; v\}'\ anything done or performed; the exer- ! Qi cise of physical or legal powers by an yiH individual or body; is proper and not unusual in jurisprudence. Thus the expressions, " judicial action is often discretionary," " in the course he took, defendant was guilty of a criminal action," do not import a judicial pro- ceeding of any kind, but signify, in the most general way, something done. But in a technical sense much more fre- quent and important, action is a broad, generic term for the great mass of ordi- nary judicial proceedings, governed by established law, and prosecuted for enforcement of rights or redress or pun- ishment of wrongs. A term which is used so often must insensibly acquire some variations of meaning. Thus action, in its broadest sense, includes all the various proceed- ings ordinarily allowed in courts of jus- tice ; more narrowly, and as opposed to prosecution, it includes the modes allowed to individuals for enforcement of civil rights or redress of private wrongs, excluding proceedings insti- tuted by government for punishment of offences; or, as opposed to suit, it means an ordinary proceeding accord- ing to the course of courts of law, excluding resort to equity or to remedies of equitable cognizance. See Suit. Prior to the era of codes of re- formed procedure, and while common- law and equitable remedies were every- where distinct, there Was ground to say that, by general usage, action meant the ordinary proceeding enter- tained in common -law courts for admin- istering such redress or punishment as was within their powers. It might comprise the proceeding for punishment of public offences, as well as that for redress of private wrongs; but very usually the former was distinguished as indictment or prosecution, and action was employed as more appropriate for lawsuits of individuals. The New York code of procedure, after dividing remedies into actions and special proceedings, defines (in § 2) action as "an ordinaiy proceeding in a court of justice, by which a party prose- cutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punish- ment of a public offence." This defini- tion has been re-enacted in many states, and has received general approval. It was a fundamental principle of the sys- tem thus introduced, to merge oommon- law and equitable modes in one uniform remedy; both kinds of rights are pros- ecuted by " action," as the technical term, and "suit" is relegated to the vernacular. Action is the form of a suit given by law for the recovery of that which is one's due ; the lawful demand of one's right Co. Litt. 285, 285 a. The means by which men litigate with each other. 3 Black. Com. 117. The right of recovering in a court of justice what is due or owing to one's self. Brown. The legal demand of a right, without regard to the form of the proceedings by wliich such right may he enforced, Bridg- ton V. Bennett, 23 Me. 420, 425. The legal demand of one's right. Far- rington v. Freeman, 2 Edw. 572 ; Bank of Commerce v. Rutland & Washington E. E. Co., 10 How. Pr. 1 ; Overseers of Clayton y. Beedle, 1 Barb. 11. A legal demand of one's right, or the right of prosecuting to judgment for what is due to one's self ; and thus understood it does not include a mandamus, the issuing of which is discretionary. People v. Sage, 3 How. Pr. 56. Action may he defined as an abstract legal right in ona person to prosecute another in a court of justice ; and suit, as the actual prosecution of such right in a court of justice. Matter of Hunter, 6 Ohio 499. Thus, a statute providing that an action for the killing of the father shall survive, upon the death of the widow, to the children, means the right of action. David v. South-western 'E. E. Co., 41 Ga. 223. In the New York revised statutes, action generally designates a suit at law ; but the word suit may mean either a proceeding at law, or one in equity. Didier v, Davison, 10 Paige Ch. 515. ACTION 22 ACTION Civil action, in the Iowa code, is used in distinction from criminal action, and in- cludes proceedings in equity. Kramer v. Eebman, 9 Iowa, 114. Action, in a statute, sometimes includes suits in chancery. Coatsworth v. Barr, 11 Mich. 199. Action, includes proceedings by foreign attachment. Allen v. Partlow, 3 S. C. 417. It includes writ of error. Ulshafer v. Stewart, 71 Pa. St. 170. A writ of error is not a suit or action within the provisions of a statute to sue in Jin-ma pauperis. Moore v. Cooley, 2 Hill, 412 ; 8. p. McDonald v. Bank for Savings, 2 Hmv. Pr. 35. Neither certiorari nor mandamus are ac- tions within a statute providing that, on the expiration of the term of office of an officer against whom an action is pending, the court shall substitute his successor. People ». Sage, 3 How. Pr. 56 ; People v. Oswego County Court, 2 Thomp. #■ C. 431. A writ of error is not an action or siiit, within a provision that no action or suit brought by persons in their official capacity shall abate by the determination of such capacity by death or otherwise, but their successors shall be substituted. Overseers of Poor V. Beedie, 1 Barb. 11. In a statute providing for continuance of any action after death of a party, action has been held to include appeals from decrees of courts of probate. Stiles' Appeal, 41 Conn. 329. In a proviso that an act permitting in- terested witnesses to testify, " shall not apply to actions by or against executors," &c., action has been held to include all civil proceedings. McBride's Appeal, 72 Pa. St. 480. Petitions for the location of liighways pending before county commissioners are not actions, within the meaning of a statute saving pending actions from the effect of certain statutes regulating appeals. Web- ster V. Commissioners of Androscoggin, 63 Me. 27. A proceeding for assessment of damages for land taken for a highway is not an action. Valentine v. City of Boston, 20 Pick. 201. Action, as defined in the New York code (see supra), includes : Any judicial proceed- ing which, if conducted to a termination, will result in a judgment ; such as a proceed- ing in a justice's court', under a mechanic's lien law. People v. County Judge of Rensse- laer, 13 How. Pr. 398. All civil actions, not only such as were formerly actions at law, but also such as were formerly suits in equity. Cor- son V. Ball, 47 Barb. 452; Bank of Com- merce V. Rutland, &c. R. R. Co., 10 How. Pr. 1. A creditor's suit. Quick u. Keeler, 2 Sandf. 231. A proceeding for partition. Backus v. Stilwell, 3 How. Pr. 318; 1 Code E. 70; Myers v. Easback, 4 How. Pr. 83. A proceeding in the nature of a writ of quo warranto. People v. Cook, 8 N. Y. 67. Proceedings on the reference of a claim against an executor or administrator, under 2 Rev. Stat. 88, § 36. Lansing v. Cole, 3 Code R. 246. It does not include : A proceeding to as- sess damages on the laying out of plank- roads. Ex parte Ransom, 3 Code R. 148. Proceedings upon a submission of a con- troversy without action. Lang v. Ropke, 1 Duer, 701. Proceedings against the heirs, executors, &c., of a deceased judgment debtor. Mills V. Thursby, 2 Abb. Pr. 432. Actions are called common-law actions, or statutory actions, according as they were accorded by the common law, or have been created by statutes. Actions are called civil, when they lie in behalf of persons to enforce their rights or obtain redress of wrongs in their relation to individuals; criminal, when they are instituted on behalf of the sovereign power, for the purpose of pun- ishing offences against the public; and penal, when they are brought, either by the state or by an individual under per- mission of a statute, to enforce a penalty imposed by law for the commission of a prohibited act. The English courts of judicature act, 36 & 37 Vict. ch. 66, § 100, prescribes that in xhe construction of that act ' ' action shall mean a civil proceeding commenced by writ, or in such other manner as may be prescribed by rule of court, and shall not include a criminal proceeding by the crown." Actions are styled real, personal, and mixed, according as they seek to recover real property, or payment of money by way of damages, &c., or both. Action real is that action whereby a man claims title to lands, tenements, or heredita- ments, in fee or for life ; and these actions are possessory, or auncestrel : possessory, of a man's own possession and seisin ; or aun- cestrel, of the possession or seisin of his an- cestor. Action personal is such as one man brings against another, on any contract for money or goods, or on account of any offence or trespass ; and it claims a debt, goods, chattels, &c., or damages for the same. Action mixed is an action that lieth as well for the thing demanded as against the person that hath it, in which the thing is recovered, and hkewise damages for the wrong sustained: it seeks both the thing whereof a man is deprived and a penalty for the unjust detention. Jacob. ACTION ACTUAL By the real actions of the English law we understand specially the old feudal ac- tions brought for the recovery of laiid, or any freehold interest therein. Actions personal, as opposed to actions real, are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and likewise whereby a man claims a satisfaction or damages for some injury done to his person or property. Mozley S/- W. Actions are called local, when they relate to or involve a subject-matter hav- ing, in the view of the law, an indepen- dent location, in which case the place of trial is governed by the location attrib- uted to the subject; and transitory, when they are unconnected with such fixed subject-matter, and may be tried where the person of the defendant is reached. Popular actions, in English usage, are those actions which are given upon the breach of a penal statute, and which any man that wUl may sue on account of the king and himself, as the statute allows and the case requires. Because the action is not given to one especially, but generally to any that will prosecute, it is called action popular ; and, from the words used in the process {qui tarn pro domino rege sequitur quam pro se ipso, who sues as well for the king as for him- self), it is called a qui tarn action. Actions are called, in common-law practice, ex contractu, when they are founded on a contract; ex delicto, when they arise out of a wrong. The common-law action was com- menced by a writ, which, under the prac- tice in several of the states, embodied sufficient information of the case set up by plaintiffi to serve the purpose of a declaration. Where this is not required, the plaintiff, in a common-law action, opens the pleadings by a declaration showing his cause of action. To this the defendant interposes a demurrer or a plea; and following the plea there might be, until recent statutory changes, a long series of replication, rejoinder, and the like, framed accord- ing to astute rules, prescribed by the science of special pleading, for bringing the parties to a distinct simple issue. Under the codes, action is commenced by summons, which is scarcely a judicial process, but rather a notice from com- plainant to defendant to appear and de- fend. It proceeds by pleadings of a simple nature, limited to a complaint or petition and an answer, except where the answer alleges an affirmative claim or counter-cause of action, when a reply is appropriate. Issues are raised by an implied traverse of the answer or reply. ACTIONABLE. That which may be the subject of an action. Thus words which are slanderous, and for the speak- ing of which an action may be main- tained, are spoken of as actionable. ACTOR. A plaintiff. Used as the opposite of reus, a defendant. Also, used of the party who, for the time, has the initiative in the suit. Actor sequitur forum rei. Ac- cording as rei is intended as the genitive of res, a thing, or reus, a defendant, this phrase means : The plaintiff follows the forum of the property in suit, or the forum of the defendant's residence. Actors non probante, reus absol- vitur. The plaintiff not proving his case, the defendant is absolved. A principle more frequently expressed by the maxim, Actori incumbit probatio, q.v. Actori incumbit probatio. Upon the plaintiff rests the burden of proof. If the plaintiff does not prove his case, or establish his claim, the defendant is not required to refute it, and the action fails. Thus, where the right of posses- sion of property is in question, the de- fendant is not bound to show any title to the possession until the plaintiff has shown title sufficient to call in question the defendant's possession; and the plaintiff can recover only on the strength of his own case, not on the weakness of the defendant's. Where his claim is in equity, he is bound to prove it to be better, more just, more equitable, than the defendant's claim, whether the lat- ter be in law or equity, Fisk v. Pot- ter, 2 Abb. Dec. 138 ; 2 Keyes, 64. But the application of this principle is somewhat modified by the further maxim on the same subject, Affirmanti, non ne- ganti, incumbit probatio, q. v. ACTUAL. That which is real, which exists in fact, and in the time being ; in contradistinction to that which is merely conceived or is imputed by construction, or is theoretic, or is suggested as of future occurrence. ACTUAL 24 ACTUAL Something real, in opposition to con- structive or speculative, — something " ex- isting in act." State u. Wells, 31 Conn. 210, 213. The word occurs in several legal phrases, of which the following are of leading importance: Actual cost. The price which has been in fact paid for a thing purchased- Where a revenue law has imposed duties on goods according to their actual cost, this means the actual price paid in a lona fide purchase, and not the market value. Alfonso v. United States, 2 Story, 421 ; United States v. Sixteen Packages of Goods, 2 Mas. 48. Actual damages. Money awarded to be paid by a wrong-doer to an injured person in compensation for his real loss or injury; in distinction, on the one hand, from a merely nominal sum al- lowed as matter of course and upon legial theory, because his right has been vio- lated ; and, on the other, from a sum al- lowed to be imposed by way of punish- ment, or from motives of public policy, to prevent repetition of such wrongs. See Damages. Actual determination. Some stat- utes giving a right of appeal restrict it to a review of an actual determination of the court below; such as N. Y. Code of Pro. § 11. A judgment by default, affirming a judgment appealed from, is not an " ac- tual determination," within the meaning of sucb a statute, McMahon v. Rauhr, 47 N. Y. 67 ; nor is a judgment entered in a lower court, upon a remittitur from an appellate court, and in conformity therewith, Wilkins v. Earle, 46 N. Y. 358; 42 How. Pr. 255; nor is a judg- ment reversing a judgment below, and ordering a new trial, Frank v. Benner, 3 Daly, 422. But an appeal lies from a judgment entered after an order deny- ing a new trial, although the judgment is not directed in the order; for such a judgment is, in effect, an " actual deter- mination," the entry of judgment below having been suspended until the order was made. Caughey v. Smith, 47 N. Y. 244. Actual notice is a notice really given, — a notice by means which bring the fact to the mind of the person con- cerned, and give him a knowledge of it; as distinguished from an imputation of knowledge on a theory of law, that, be- cause the fact was publicly recorded, or means of knowing it existed, the person concerned is to be treated as if he had knowledge. Notice is actual, when It is directly and personally given to the party to be notified ; and constructive, when the party, by cir- cumstances, is put upon inquiry and must be presumed to have had notice, or by judg- ment of law is held to have had notice. Jordan v. Pollock, 14 Ga. 145. Actual occupation or possession. Actual occupant, as used in the provisions of the New York revised statutes governing ejectment, means no more than " tenant in possession." A soldier of the United States in charge, under superior officers, of land, as the property of the United States, is not such occupant. People v. Ambrecht, 11 Abb. Pr. 97, 101. Neither actual occupation, residence, or cultivation are necessary to constitute ac- tual possession, when the property is so situated as not to admit of any p,ermanent, useful improvement, and the continual claim of the party has been evidenced by public acts of ownership, such as he wovdd exer- cise over property which he claimed in his own right, and would not exercise over any other. Ewing v. Burnet, 11 Pet. 41 ; 1 Mc- Lean, 266 ; and see Watkins v. Holman, 16 Pet. 25. One who erects a saw-mill on land, and has mill employes residing thereon, although himself absent, and residing in another county, is in " actual possession " and " oc- cupation " of the land within the meaning of Iowa Rev. 3, § 3318, — entitling such person to written notice of levy. Pleming B. Maddox, 30 Iowa, 239. Actual possession, as used in the provisions of N. Y. Eev. Stat. 312, § 1, authorizing proceedings to compel the de- termination of claims to real property, means a possession in fact effected by ac- tual entry upon the premises ; an actual oc- cupation. Churchill v. Onderdonk, 59 N. Y. 134. It means an actual occupation or pos- session in fact, as contradistinguished from that constructive one which the legal title draws after it. The word actual is used in the statute in opposition to virtual or constructive, and calls for an open, visi- ble occupancy. Cleveland v. Crawford, 14 N. Y. Supreme Ct. 616. Actual payment. The statutes au- thorizing the formation of limited part- nerships , and exempting a special partner from general liability, generally require proof to be made at the fonnation of the partnership that the capital has been actually paid. It has been held that a contribution to the capital, made in goods, is not a compliance with this re- ACTUAL 25 ACTUS quirement. Haviland v. Chase, Z9 Barh. 283. But a payment contributed in checks of third persons, upon bankers, which checks are afterwards paid, is an actual cash payment within such a stat- ute. Hogg V. Orgill, 34 Pa. St. 844. Actual total loss. A real destruc- tion of property insured against losses at sea; a loss in fact, depriving the insured party of the original thing in- sured, as distinguished from such in- jury or change of condition as by the theory of insm-ance law entitles the in- sured to recover the insurance money, although the property may subsist in a condition admitting its being delivered to the insurers by abandonment. Actual total loss is not quite equivalent to destruction : thus, a ship is totally lost when lost as a ship ; a cargo is totally lost when lost as a cargo; and either ship or cargo is a total loss to the insured owner when he has lo*t all possession of, or power or control over them, although they may continue to exist in specie as before. But in the latter case there must be no rational hope, no practicable possibility, of recover- ing possession, and further prosecuting the voyage. Where a ship springs a leak and sinks in mid-ocean, though part of the cargo may float and is picked up by other vessels, there is an actual total loss. So goods which, while they exist in specie, are so damaged they cannot be reshipped, and could not arrive in specie at their final destination, the loss is an actual total loss. So, if a ship be burned to the water's edge, and still floats, incapable of repair ; but if near the shore and in shoal water, the loss is not an actual total loss until itis ascertained that she cannot be weiglied and recovered ; nor is damage by fire an actual total loss, it the ship can be repaired. Pars. Mar. Ins. Actual total loss is where a vessel ceases to exist in specie, becomes a " mere con- geries of planks," incapable of being re- paired; or where, by the peril insured against, it is placed beyond the control of the insured, and beyond his power of re- covery. Globe Ins. Co. v. Slierlock, 25 Ohio St. 50. ACTUARY. In English ecclesiasti- cal law, the actuary is an officer similar to a clerk or scribe, charged with the duty of registering the canons and con- stitutions of the convocation. In modern usage, the term generally signifies the computing officer of an insurance company, the person who cal- culates the risks and premiums for fire, life, and other insuranceis. Actus curise neminem gravabit. An act of the court shall prejudice no one. The court will not suffer either party to an action to be prejudiced by the action or delay of the court itself. Thus, where the decision of a cause is delayed by the court without any laches of one of the litigants, and the other litigant dies before judgment, the court will order judgment to be entered nunc pro tunc, if necessary, to meet the justice of the case. Cumber v. Wane, 1 Str. 425 ; Moor v. Roberts, 3 C. B. n. s. 844; Miles v. Bough, 3 Dowl.^L. 105. Actus Dei nemini facit injuriam. An act of God does injury to no one. In another form, Actus Dei nemini est dam- nosus. An act of God is hurtful to no one. Inevitable accidents, occurring without the intervention of man, are so treated by the law as to affect no one injuriously. Things which are inevi- table by the act of God, which no indus- try can avoid nor policy prevent, should not be construed to the prejudice of any person, in whom there has been no laches. Broom Max. 230. Thus a common carrier is not held liable for loss, damage, or delay in the carriage of goods arising from the act of God; e.g., from a tempest. The rule that, upon the death of a lessor who has only an estate for his life, before the day on which rent reserved is made payable, the rent shall be apportioned, is an illustration of the same principle. So with the rule that upon the death of a tenant for his own life his executors shall take the emblements, the estate being deemed to be determined by the act of God. Loss or damage, occurring without a wrongful or culpable act of any person, does not constitute injuria, within the meaning of these maxims, but is distinguished by the term dam- num absque injuria, q. v. Actus legis nemini facit injuriam. An act of the law does injury to no one. In another form, Actus legis nemini est damnosus. An act of the law is hurt- ful to no one. An act of the law is to be limited in its operation, so that it shall not work prejudice to the rights of any person. Illustrations of this principle are found in the application of rules relative to the effect upon rights of property, of marriage, divorce, merger of estates, &c. See Milbourn v. Ewart, ACTUS 26 ACTUS 5 Term, 381 ; Cage v. Acton, 1 Ld. Raym. 515; Calland v. Troward, 2 H. Bl. 324; and 2 Blach. Com. 123. The distinction referred to under the preceding maxim between injuria and damnum absque injuria (q. v.) is to be understood of the actus legis as well as of the actus Dei. Actus me invito factus, non est meus factus. An act done without my assent is not my act. Where an act is performed unwillingly or involun- tarily, under force, intimidation, or fear, it is not to be regarded as the act of the person performing it, and he is not bound by or responsible for such act. The case of a lighted squib thrown by one person and warded off by another, where the latter is not held responsible for the injury resulting, is a familiar illustration of an act done involuntarily. The execution of a deed under duress is an instance of an act done unwill- ingly, which is therefore void. The force or duress must, however, be ille- gal or improper to bring the case within the meaning of the maxim. Thus the execution of a deed, compelled by judi- cial decree, is valid, as the act of the grantor, although unwillingly performed. Trayn. Max. 21. A similar 'principle, applicable chiefly to criminal cases, is ex- pressed by the maxim next following. Actus non facit reum, nisi mens Bit rea. An act does not make one guilty, unless the intention be guilty. A mere overt act, without criminal or wrongful intention, does not render the performer of it guilty of crime, nor even, under some circumstances, civilly liable for resulting injury. To consti- tute a crime, the intent and the act must both concur. Thus to take the property of another without his consent or against his will is criminal, if the criminal intent be present, prompting the act; but to take the property of another in mistake, in ignorance, or through mere heedlessness, is not crim-' inal. In both cases the overt act is the same, but the intention is different. So a person offering counterfeit coin, in ignorance that it is counterfeit, commits no crime; while the same act, accom- panied with knowledge that the coin offered is counterfeit, is criminal, be- cause of the criminal intention to utter base coin. Yet a criminal intent is often presumed from overt acts only, in cases coming within the principle that every man is supposed to intend the necessary, or even the probable and nat- ural, consequences of his own acts. Thus the malice aforethought requi- site to constitute the crime of murder at common law is sufficiently proved by showing that the killing was intentional, and without justification or excusable cause, although no enmity or iU-wiU of the accused towards the deceased is shown. Eex v. Farrington, Russ. §• R. 207; Eex v. Harvey, 2 Barn. §• C. 264. So where an attack is made with a deadly weapon, or in a manner showing an utter disregard of consequences, and death ensues, the crime is murder; and, in general, where any act manifestly unlawful and dangerous is»done deliber- ately, the mischievous intent will be presumed, unless the contrary be shown. 1 East P. C. 231. Moreover, when the law positively forbids a thing to be done, it becomes thereupon ipso facto illegal to do it wilfully, or in some cases even ignorantly, or, perhaps, even to effect an ulterior laudable object; and, from the mere infraction of the law, the intention to break the law must be in- ferred. Broom Max. 307, and cases cited. The converse of this principle is of wide application, and, by analogy, illus- trates the relation between the overt act and the intention in criminal cases. So long as an act rests in mere intention, it is not punishable ; but when the act is done, the law judges not only of the act itself, but of the intent with which it was done ; and if the act be coupled with an unlawful and malicious intent, though in itself the act would otherwise have been innocent, yet the intent being criminal, the act likewise becomes crim- inal and punishable. Rex v. Higgins, 2 East, 21 ; Rex v. Scofield, cited 2 East P. C. 1028; Dugdale ./. Eegina, 1 Ellis §• B. 435. So far as the maxim is applicable to civil remedies, the same principles gov- ern its interpretation. Thus, in ordi- nary actions for slander or libel, if the defamatory matter was spoken or pub- lished on a proper occasion, malice in AD 27 AD fact must be proved ; but if such speak- ing or publication was without just cause or excuse, malice will be inferred, without regard to the actual intention of the party. AD. To, for, at, until. Occurring in many Latin phrases, such as: Ad admittendum clericum. For admitting a clerk. The name of a writ which lay at common law in favor of one who had, by the proper legal pro- ceeding (as by action of quare impedit) , established his right of presentation to a benefice. It was directed to the bishop, requiring him to admit the pat- ron's clerk to the benefice. The writ is practically obsolete. Ad aliud (or sometimes aliuni) eza- men. To another tribunal. Ad colligendum bona defuncti. For collecting the goods of the de- ceased. While a dispute is pending as to who shall be appointed executor or administrator, or probate of a will is delayed, the circumstances of the estate often require that the court of probate should appoint some person, tempora- rily, for collecting and preserving the assets. His commission, in old forms, was characterized by this Latin phrase. According to the New York practice, when a case arises calling for the issu- ing of letters of collection, the selection of the collector rests wholly in the dis- cretion of the surrogate. The collector, when appointed, takes an oath and gives a bond in manner prescribed by statute. His powers are strictly conserv- ative, the purpose of the appointment being only to preserve the assets. He has no authority to pay debts ; still less to pay legacies or make distribution; and his power of selling goods or dis- bursing moneys is limited to sales and payments necessary for collection or preservation of the estate, until the time ai-rives when he can turn it over to an authorized executor or adminis- trator. Dayt. Surr. 251, 311, 583. Ad communem legem. At the com- mon law. The name of a species of writ of entry at common law, brought by a per- son entitled in reversion, to recover land which had been wrongfully alienated by the tenant for life. It could be brought only after the death of the tenant for life. Having been long obsolete, it was abolished in England by Stat. 3 & 4 Wm. IV. ch. 27, § 86. Mozley ^ W. Ad damnum. To the loss. A com- mon-law declaration, after alleging the acts foi'ming the cause of action, closes with the clause or formula that they were to the damage of the plaintiff so many pounds (or dollars), naming a sum, wherefor he brings suit. The Latin version of this clause, in the old forms, gave a name to it which is still retained; the clause in the plaintiff's pleading, in which he alleges the amount of his loss, for which he claims recovery, is called the ad damnum, clause, or the ad damnum. Ad ea quee frequenting accidunt jura adaptantur. Laws are adapted to cases which frequently occur. A stat- ute, which, construed according to its plain words, is, in all cases of ordinary occurrence, in no degree inconsistent or unreasonable, should not be varied by construction in every case, merely because there is one possible but highly improbable case in which the law would operate with great severity and against our notions of justice. The utmost that can be contended is that the construc- tion of the statute should be varied in that particular case, so as to obviate the injustice. Miller v. Salomons, 7 Exch. 549; 8 Id. 778. If the words of the law do not extend to a case of rare occurrence, through inadvertence of the legislature or otherwise, the construction will not be strained to suit such a case, it being deemed a casus omissus, which the courts will not supply. The gen- eral principle applies to the unwritten law as well as to statutes. Hawtayne v. Bourne, 7 Mees. ^ W. 599. Ad ezhasredationem. To the dis- herison; to the injury of the inheri- tance. Ad fidem. (Holden) to allegiance. Ad filum. To the thread. See Ad MEDIUM FILUM. Ad finem. To the end. Often ab- breviated ad fin. It is chiefly used in refei'ences to books, as a direction to read from the place designated to the end of the chapter, section, &c. Ad inquirendum. For inquiring. Characteristic words of a common-law writ directing inquiry to be made of AD 28 AD any thing relating to a cause depending. Brown. Ad interim. In the mean time. Ad litem. For the suit. Used to designate a guardian appointed to pros- ecute or defend a suit on behalf of a party incapacitated by infancy or other- wise; such guardian is termed a guar- dian ad litem. Ad medium filum aquae. To the middle thread of the stream. Ad medium filum vise. To the middle thread of the way. It is a doctrine of conveyancing often applied, that a deed describing lands as bounding on a stream or on a highway, without any thing to identify the line more exactly, is understood to mean bounded by the centre line or middle thread of the stream or road; provided alwaj's that the grantor's own title extended so far. Ad ostium ecclesise. At the door of the church. An ancient kind of dower was termed " dower ad ostium ecclesicB," because the wife was en- dowed by the husband at the door of the church (when ceremonies of mar- riage were performed at the church door) of the whole of his lands, or such part of them as he might then specify, or even of his personal estate; but this has been disused and abolished by stat- ute. 2 Black. Com. 133. A trace remains in the marriage ritual of the Church of England, in the words ad- dressed by the man to the woman, " With all my worldly goods I thee endow." Ad prozimum anteoedens fiat relatio, nisi impediatur sententia. Let a reference be to the nearest ante- cedent, unless the meaning hinders. A word of reference is to be understood as intended to refer to the antecedent nearest it, unless the evident meaning of the writer compels a different con- struction of the instrument under con- sideration. Where the context requires a deviation from the rule, the relative may be connected with nouns which go before the last antecedent. Staniland u. Hopkins, 9 Mees. §• W. 192. In all cases " the last antecedent" is the last word which can be made an antecedent so as to have a meaning. And the intent will control the strict gi-ammati- cal rule; as in case of an award that one should pay before such a feast ten pounds to another, and that then the other should make him a release, the w^ord then should not then be referred to the time of the feast, but to the time of payment of the money. Dyer, 15 h, arg. Ad quaestionem facti non respon- dent judlces; ad quaestiouem legis non respondent juratores. To a question of fact the judges do not an- swer; to a question of law the jurors do not answer. Or conversely, Ad quces- tionem juris respondent Judices ; ad qums- tionem facti rexpondent juratores. To a question of law the judges answer; to a question of fact the jurors answer. A question or issue of fact must be determined by the jury; a question or issue of law must be determined by the judge. This maxim expresses a leading principle of procedure, a peculiar and characteristic feature of the common- law system. One of many familiar instances of the application of the rule is the question of the validity of a deed, where the matters of fact, as the execu- tion, delivery, and accompanying cir- cumstances, are passed upon by the jury, and the judge determines, as mat- ter of law, the legal sufficiency, and the construction and effect of the instru- ment. In an action for malicious prose- cution, where the defendant gives evi- dence tending to show reasonable and probable cause for the prosecution, the jury must find the facts; but the judge must decide, as matter of law, whether the facts proved amount to reason- able and probable cause. But in all cases, the question whether there be any evidence is for the judge; whether sufficient evidence, for the jury. An- other limitation of the rule is, that facts on which the admissibility of evi- dence depends are determined by the judge, not by the jury. Thus, if the competency of a witness, or of documen- tary evidence, turns on any disputed fact, the judge must decide it. And it is for the jury to determine the applica- tion of the law to the facts found by them, at least in all cases where their verdict is general, — that is, for the plaintiff or for the defendant, guilty or AD 29 ADDITION not guilty, — such a verdict being man- ifestly compounded of the facts, and the law as applicable to them. Ad quod damnum. The name of a writ commanding the sheriff to make inquiry " to what damage " a specified act, if done, will tend. Ad quod damnum is a writ which ought to be sued before the king grants certain liberties, as a fair, market, or such like, which may be prejudicial to others, and thereby it should be required whether it will be a prejudice to grant them, and to whom it will be prejudicial, and what prej- udice will come thereby. There is also another writ of ad quoa damnum, if any one will turn a common highway and lay out another way as beneficial. Termes de la Ad quod non fuit respondendum. To which there was no answer. Ad respondendum. For answering. Words peculiar to certain writs em- ployed for bringing a person before the court to make answer in defence in a proceeding. Thus there is a capias ad respondendum, q. v. ; also a habeas corpus ad respondendum. Ad satisfaciendum. To satisfy. The distinctive words of the writ of ca- vias ad satisfaciendum, q. v., and other writs by which the sheriff was required to take the defendant to satisfy the de- mand of the plaintiff. Ad sectam. At the suit. Used in entitling causes or papers on the part of the defendant in a suit, in an abbrevi- ated form; as -'ads.," and sometimes "adsm." and "ats. ;" e. g., Richard Roe ads. John Doe, — Richard Roe at the suit of John Doe. In many jurisdictions it has been the practice for the party who was the actor in each step orproceeding to entitle that paper, placing his own name first and his adversary's after. Thus the defend- ant's pleadings and notices of motion would be entitled, , defendant, ads. (for ad sectam') , plaintiff. If the paper thus entitled became the cause of a hearing and decision in court which was reported, the re- porter naturally entitled his account with the same formula. Hence many cases in older reports are entitled Roe, ads. Doe, instead of Doe v. Roe. This method was abrogated, for New York, by the reformed code of procedure, which introduced the rule that the title of a cause should, from the outset and through all the proceedings, present the plaintiff's name first and the defend- ant's last. Whether the ' particular pleading or paper served emanates from the plaintiff or from the defendant, whether the cause is pending in the court of original jurisdiction or has been carried up by appeal, makes no difference; the same title is used throughout. Ad terminum qui preterit. For a term which has passed. Words in the Latin form of the writ of entry employed at common law to recover, on behalf of a landlord, possession of premises, from a tenant holding over after the expiration of the term for which they were demised. Wharton. Ad valorem. According to value. Duties upon imports have been im- posed by two different systems, some- times by requiring payment of a specific sum upon an article, by name, called specific duties; in other cases by re- quiring payment of a sum ascertained by a percentage on the value of the im- portation, called ad valorem duties. The term ad valorem, as used in the reve- nue laws, does not always mean the actual value of the article. United States v. Clement, Crabbe, 499. Additio probat minoritatem. An addition shows limitation. See Addi- tion. ADDITION. 1. Some designation conferred on a person besides his name, to identify him more precisely, has been called, especially in former conveyanc- ing, his addition. Addition is that which is given to a man besides his proper name and surname, that is to say, of what estate, degree, or mystery he is, and of what town, hamlet, or country. Additions of estate are these : yeoman, gentleman, esquire, and such like. Additions of degree are the names of dig- nity, as knight, earl, marquess, duke. Additions of mystery are : scrivener, paint- er, mason, carpenter. And there are ad- ditions of town, as, " of Dale." Termes de la Ley. 2. Addition, as used in its vernacular sense, in mechanic's lien laws, has re- ceived judicial construction. Under a statute giving a mechanic's lien upon an "addition erected to a former building," the new structure must be a ADDITION 30 ADJOIN lateral addifion. It must occupy ground without the limits of the building to which it constitutes an addition ; so that the lien shall be upon the building formed by the addition, and the land upon which it stands. An alteration in a former building, by add- ing to its height, or to its depth, or to the extent of its interior accommodations, is an alteration merely, and not an addition, within the act. An addition erected to a former building is the appropriate and accustomed phrase, when speaking of an additional building, erected alongside of, and not one under, or on top of, a former building. If one should say he had erected an addition to his house, he would not be understood as saying that he bad put a cellar under it, or a story on top of it. Updike u. Skillman, 27 N. J. L. 131. A piazza is an addition to a building, within the mechanic's lien law of New Jersey ; folding doors are not. Whitenack V. Noe, 11 TV. J. Eq. 413. Additional. Embraces the idea of joining or uniting one thing to another, so as thereby to form one aggregate. Thus, " additional security " imports a security, which, united with or joined to the former one, is deemed to make it, as an aggregate, suf&cient as a security from the beginning. Under a statute providing for giving addi- tional security for a guardian, the new sureties are liable, with the old ones, for all defaults of the guardian since the first bond. State v. Hull, 53 Miss. 626. ADEEM. To satisfy a legacy by Bome gift or substituted disposition, made by the testator, in advance. Ademption : an extinguishment of a bequest, by acts of the testator, indicat- ing an intent to substitute another disposition for it. Ademption is the act by wliich the tes- tator pays to his legatee, in his lifetime, a general legacy which by his will he had proposed to give him at his death ; also used to denote the act by which a specific legacy has become inoperative on account of the testator having parted with the sub- ject. Langdon v. Astor, 16 N. Y. 9, 40. Ademption, in strictness, is predicable only of specific, and satisfaction of gene- ral legacies. Beck v. McGillis, 9 Barb. 85, 56 . Langdon v. Astor, 3 Duer, 477, 541. An ademption of a legacy occurs where the thing specifically bequeathed is not in existence at the time of the testator's de- cease. Thus, if a horse be specifically be- queathed, and afterwards die during the testator's lifetime, or be disposed of by him, the legacy will be lost or adeemed, because there will be nothing on which the bequest can operate. Ford v. Ford, 23 N. H. 212. Where one who has made his will, giving a legacy to a child or grandchild, afterwards gives a portion to or makes a provision for the child, though without expressing it to be in lieu of the legacy, it will be deemed an ademption if the circumstances indicate that intention, if it is not less than the legacy, if it is certain, and of the same general nature, &c. \Storif Eq. § 1111.] Clendenning v. Clymer, 17 Ind. 155 ; Weston v. Johnson, 48 Id. 1. If a testator bequeaths bank shares, and afterwards sells some of them, this sale is an ademption of the legacy pro tanto. White V. Winchester, 6 Pick. 48. Same as to sale, by testator, in his life, of one of several slaves given by his will. Goddard v. Wagner, 2 Strobh. 1. ADHERENCE. The name of a form of action by which, in Scotland, the mutual obligation of marriage may be enforced by either party. Bell. It corresponds to the English action for the restitution of conjugal rights. ADJACENT. Lying close to, or bor- dering upon, something. People v. Scher- merhorn, 19 Barb. 540, 556. Compare Peverelly v. People, 3 Parh Cr. 59, 69. A statute authorizing the entry of a specified quantity of public land adjacent to a certain boundary does not restrict the entry to land adjoining the boundary ; land in the neighborhood, or convenient or near to the place mentioned in the act, may be taken. Henderson v. Long, 1 Cooke, 128. Adjacent, applied to lots of land, to dis- criminate them as to locality from other lots, in a statute which undertakes to devest rights of property, and is therefore to be strictly construed, must be held synony- mous with contiguous; although in another and more general relation it might have a more extended meaning. Municipality No. 2, 7 La. Ann. 76. ADJOIN. Adjoining, in a statute enact- ing that firing a building, not the subject of arson in the first degree, but adjoining to or within the curtilage of a dwelling- house, shall constitute the offence of arson in the second degree, means, in actual con- tact with. Peverelly v. People, 3 Park. Cr. 59. The words, " adjoining to or occupiedj^ with a dwelling-house," in the Michigai^j statute defining burglary, have a legal sig- nification, and must be construed in connec- tion. They mean something more than ad- jacent or contiguous. They evidently refer to the common-law definition of burglary, and mean a breaking into out-houses within the same enclosure, adjoining to the dwell- ing, and occupied as part thereof. People V. McGra, 1 Mick. N. P. 27. Adjoining, when applied to towns, in- cludes towns which corner together, as well as those having the same boundary line. Holmes v. Carley, 32 Barb. 440. A tract of land occupied as a homestead, situated eighty rods outside of the bounda- ry of a city, was held not embraced in the provision that tracts of land laid ofi into ADJOUR^r 81 ADMEASUREMENT town lots, adjoining the boundaries of a city, should be deemed a part of the city. Truax w. Pool, 46 Imoa, 256. ADJOURN. To postpone action of a convened body until another time specified, or indefinitely, usually called to adjourn sine die. Adjournment; a postponement or putting off of proceed- ings until another time or place. The primary signification of adjourn is to put ofE to another day specified. But it has also the meaning of suspending busi- ness for a time ; deferring ; delaying. La Farge v. Van Wagenen, 14 How. Pr. 54,58. 0-n^.V.l. Adjourn aira postpone, used in different clauses of a statute empowering justices of the peace to put off causes pending before them, have been held synonymous. Bisp- ham V. Tucker, 2 N. J. L. 184 (254). Adjournment, as used in S. C. Const., art. 3, § 22, relating to the governor's ap- proval of acts, means an adjournment by the concurrent action of both houses of the general assembly. Corwin v. Comptroller- General, 6 iJjcA. (S.C.) 390. Adjourned session; or, adjourned term. These expressions import a session or term which is but a continuation of a previous one; the same session or term prolonged. Thus, as the session or term preceding has not finally closed, the power of the court to correct an erroneous judg- ment con tinues. Van Dyke v. State, 22 Ala. N. s. 57. Adjourned session, as the term is used in Maryland, is considered as the same session with that at which the adjournment was made. Mechanic's Bank of Alexandria v. Withers, 6 Wheat. 106, 109. Adjourned summons. A summons taken out in the chambers of a judge, and afterwards taken into court to be argued by coimsel. Hunt, Eg. ADJUDGE. To determine, in the exercise of judicial power. Adjudged: decided judicially. Adjudged is sometimes used as a syno- nyme of declare or deem, and without im- plying any judgment of a judicial tribunal ; as, in N. J. Rev. Laws, 272, § 1, " all lotter- ies shall be, and are hereby adjudged to be, common and public nuisances." State v. Price, UN. J. L. 203, 218. Adjudged and deemed are not materially different in meaning. Blanfus v. People, 67 N. Y. 107. ADJUDICATE. To determine in the exercise of judicial power. Synony- mous with adjudge in its strictest sense. Adjudication: a solemn or deliberate determination by the judicial power. In bankruptcy practice, the adjudica- tion is the decision ajion the question whether the debtor is a bankrupt, as distinguished from the determination of other questions arising in the proceed- ings. Adjudication has several special uses in Scotch law ; as to which see Bell ; Wharton. ADJUNCTION. One of the modes of industrial accession borrowed from the Ro- man law. It takes place where the prop- erty of one man is added to that of another ; as, for example, where a man builds on the ground of another. In such a case it is held that the proprietor of the grounds is entitled to the building; but, as the pre- sumption is' that it was erected in bond fide belief that the ground was the property of the builder, he is entitled, in equity, to be indemnified to the extent, at least, of the benefit which he has conferred. Bell. ADJUST. To bring to proper rela- tions; to settle; to determine an amount due. Adjustment; a settlement or de- termination of the relative rights of parties, or of the sura due upon a de- mand. Used especially of the settle- ment of claims of insured parties after a loss, against insurers; the adjustment is the official determination what sum must be paid to satisfy the policy. Adjustment, in the law of insurance, is the settling and ascertaining the exactj amount of the indemnity to which, under , the policy, the insured is entitled, after all proper allowances and deductions have been made; and fixing the proportions to be borne by the underwriters respectively. Be- fore any adjustment is made, the under- writers require to be satisfied that a loss within the terms of the policy has occurred ; and in the ordinary case the duty of making the requisite inquiries is devolved on the underwriter who has first subscribed the policy. In complicated cases of average loss the papers are usually submitted to a professional referee, to calculate and adjust the percentage rate of loss. After an ad- justment has been once made and signed, it is uot usual for the underwriters to require further proof, but at once to pay the loss. It is not, however, conclusive and binding on the underwriters ; for where the extent of the loss is disputed, the adjustment oper- ates merely as a transfer of the onus pro- handi from the insured to the imderwriters. BeU. ADMEASUREMENT. A determi- nation by metes or boundaries of the extent of a right to lands. A writ of admeasurentent lay against persons who usurped more than their share in the two following cases : Admeas- urement of dower, where the widow held from the heir more land, &c., as dower, than rightly belonged to her ; and admeas- urement of pasture, which lay between ADMINICLE 32 ADMIRALTY those having common of pasture, where any one or more of them surcharged the common. [Ternies deUx, Ley.) Wharton. ADMINICLE. That whioh is brought in as aid or support to something else ; something corroborative. Adminicular evidence is evidence brought in to ex- plain or complete some evidence which in its nature is primary, but which, as adduced, needs explanation or corrob- oration. Adminicle is a term used in the action of proving the tenor of a lost deed ; and signi- fies any writing, draft, or scroll, tending to establish the existence or terms of the deed in question. Bell. ADMINISTER. To serve in the conduct of affairs, in the application of things to theii' uses. Administration : the service rendered, or the charge or duty assumed. 1. In estates, an administrator or administratrix is a man or woman charged, by letters from a court of pro- bate, with the duty of settling up the affairs of an estate, paying the debts, and discharging the legacies, or distrib- uting the unbequeathed assets, in cases where no execntor has been appointed. Administrator is uniformly distin- guished from executor, being a personal representative named by the court of probate, in opposition to one designated by will. But administrarton is not con- fined in meaning to the settlement of an; e.state by an administrator; nor is exe- cution in frequent use as meaning the performance of an executor's trust. Administration may mean the manage- ment of an estate by an executor, as well as that by an administrator. A public administrator is an officer authorized by the statute law of several of the states to superintend the settle- ment of estates of persons dying without relatives entitled to administer. Administer, in bonds given by adminis- trators, that the principal shall well and truly administer, according to law, has been held to bind the sureties only for the just payment of debts, and not for the proper apportionment of the distributable surplus. Moore v. Waller, 1 Marsh. 488; Barbour v. Robertson, 1 Liit. 93. Administration cum teatamento an- nezo is granted when there is not any executor named in the will, or if an incapa- ble person is named, or a person who re- fuses to act. Administration de bonis non is granted when the first adnunistrator dies before he has fully administered. Administration durante minori aetate is where an infant is made executor, in which case administration with will an- nexed is granted to another, until the in- fant executor attain the age of seventeen years, when this administration ceases. AdminiBtration durante absentia is granted when the next of kin is beyond sea, lest the goods perish or the debts be lost. Administration pendente lite is granted where a suit is commenced in the probate court concerning the validity of a will, until the suit be determined, in order that there should be somebody to take care of the testator's estate. Administrator-in-Iaw. By the law of Scotland the father is what is called the administrator-in-law for liis dhildren. As such, he is ipso jure their tutor while they are pupils, and their curator during their minority. The father's power extends over whatever estate may descend to his chil- dren, unless where that estate has been placed by the donor or grantor under the charge of special trustees or managers. This power in the father ceases by the child's discontinuing to reside with him, un- less he continues to live at the father^s ex- pense; and with regard to daughters, it ceases on their marriage, the husband being the legal curator of his wife. Bell. 2. In physiology, to administer means to cause a person to take into the hu- man system. To administer a drug or medicine is to direct and cause it to be taken. La Beau !>. People, 33 How. Pr. 66; 34 N. Y. 223 ; 6 Park. Cr. 371. To constitute the crime of administering poison, under the Florida statute, it is not sufficient to place poison in food intended for certain persons, if they use none of such food. Sumpter v. State, 11 Fla. 247. What assistance to a suicide taking poi- son will constitute administering, see Blackburn v. State, 23 Ohio St. 146. ADMIRAL. The title of an officer high in command in the navy. ADMIRALTY. A court having jurisdiction of controversies arising out of navigation of public waters ; also the system of jurisprudence particularly de- voted to those controversies. Throughout European commercial states, courts of admiralty have existed from earliest commercial times; having a jurisdiction generally co-extensive with navigable waters, and which embraced both questions of public right, including prize and causes of ADMIRALTY 33 ADMIRALTY a private character that grew out of maritime employment and commerce; and this, as nations grew more com- mercial, became in the end the most important branch of the jurisdiction. Throughout the continent, authority to determine maritime controversies was liberally accorded to these tribunals. In England, in early times, less lib- erality was felt towards the exercise of admiralty powers. The early course of jurisprudence upon the subject was largely influenced by a sentiment of dis- trust and disapproval, which prevailed among the common-law courts and law- yers, and to a degree among the people at large, towards the courts of admiralty. They were courts of foreign origin, and were guided by the rules and forms, ob- noxious through a long period to the English jurisprudents, of the civil law. They rejected trial by jury, and confided the determination of both fact and law to the judge. Hence there was a con- stant efEort to limit the admiralty juris- diction, and to maintain that of courts of common law against any possible en- croachments from it; and this efEort was particularly directed towards limiting the jurisdiction territorially. England's rivers admit of but little or no commerce above the ebb and flow of tide's ; hence ■ the tidal line was naturally claimed, by the common lawyers, to be the extreme limit of the authority of courts of admi- ralty. And, while the flow of the tide might carry that jurisdiction up to high- water mark, along the shore and up the bed of large streams debouching in the ocean, it was rigorously insisted that at the ebb the maritime jurisdiction must recede with the waters, and the courts of law must enjoy their authority, in turn, while the soil was left bare. More- over, as the county was in common-law jurisprudence the organisation or divi- sion which underlaid the political and legal administration of affairs, it was insisted that admiralty should not break the legal integrity of a county. Tide or no tide, occurrences within the body of a county were withheld from its cogni- zance. In recent years the jurisdiction of the English admiralty courts has been de- fined anew, and in a larger spirit, by VOL. I. the statutes 24 & 25 Vict. ch. 10, and 26 Vict. oh. 24; and other enactments have liberalized its practice. But the foregoing explanations are useful in in- troducing a brief sketch of the expansion which has been given in recent years to the term admiralty in the jurisprudence of the United States ; an important topic to the American reader. The national constitution, without de- fining what shall be understood by the word, declares that the judicial power of the general government shall extend to cases of admiralty and maritime ju- risdiction. The early decisions of our courts assumed rather than decided that the admiralty jurisdiction here intended was only coextensive with admiralty jurisdiction in English jurisprudence ; that the provision meant to grant only the limited jurisdiction which was sigiii- fied by admiralty in the common law at the date of the constitution; and that the jurisdiction as vested in the national courts was subject to the well-known limitations attached to it in England, was confined to tidal waters, and waa excluded from the body of a county. But the necessities incident to' the development of our interior commerce, and of navigation upon the lakes and rivers of the United States above, or wholly independent of, tidal influences, have led the courts to reconsider this assumption, to discard the restrictions with which the common law guarded the maritime jurisdiction, and to give it the scope and extent which have been assigned to it among other nations ; until at length navigability, and not tide, has been made the leading test in determining what waters are within the admiralty jurisdiction, as it is under- stood and established in America. The earliest case of importance in the development of the new view of admi- ralty is that of Waring u. Clarke, 5 How. 441, decided by the United States su- preme court in 1846. This was a case of a collision which occurred upon a river at a spot within the ebb and flow of the tide, but also within the body of a county; and it presented the question, whether, in this country, and under the constitutional grant of admiralty powers to the United States courts, places 3 ADMIRALTY 34 ADMIRALTY within the body of a county were to be excluded. The court held that they are not : that county lines do not here, as in England, exclude admiralty juris- diction. They decided that the grant of admiralty powers, in the constitution, to the courts of the United States was not intended to be confined to such cases as belonged to the admiralty jurisdic- tion in England, at the time of the adoption of that instrument. Such a limitation is inconsistent with the ex- tent of admiralty jurisdiction exercised by the colonies, with a jiist interpreta^ tion of the constitution, and with its contemporary construction. Nor are the ancient English statutes declaring the jurisdiction in cases of collision not to extend to cases happening be- tween ships within the ebb and flow of the tide, but infra corpus comitatus, in force here. The general admiralty law furnishes a surer foundation for as- certaining the locality of marine juris- diction within the United States than the designation of it by the common-law courts of England. Almost at the very date of this adju- dication, congress, in the act of Feb. 26, 1845 (5 Stat, at L. 726) , gave what was then considered as a new and extended assertion of the jurisdiction, but has since been seen to be wholly within its true boundaries, and to impose no real limitations upon the grant. The act declared that the district courts of the United States (they being the admiralty courts) " shall have, possess, and exer- cise the same jurisdiction in matters of contract and tort, arising in, upon, or concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the time employed in busi- ness of commerce and navigation be- tween ports and places in different states and territories upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steam- boats and other vessels employed in navi- gation and commerce upon the high seas or tide waters within the admi- ralty and maritime jurisdiction of the United States." The case of The Belfast, 7 Wall. 624, presented the question whether the United States courts were bound to re- frain from this jurisdiction, when the matter involved was a contract arising out of commerce within a single state ; and the supreme court decided, overrul- ing previous decisions in favor of a more restricted rule, that the lien of the shipper of goods upon the vessel for non- performance of an ordinary contract of affreightment is a maritime lien; and a proceeding in rem to enforce it is with- in the exclusive origfinal cognizance of the district courts, notwithstanding the contract is for transportation between ports and places within the same state, and all the parties are citizens of the same state. It is enough that such con- tract is for transportation upon navi- gable waters, to which the general juris- diction of the admiralty extends. This case explains the principal subjects of admiralty jurisdiction to be maritime contracts and maritime torts, including captures jure belli, and seizures on wa^ tor for municipal and revenue forfeit- ures. , Contracts, claims, or services pm-ely maritime, and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty. Torts or injuries committed on navigable waters, of a civil nature, are also cognizable in the admiralty courts. Jurisdiction in the former cases depends upon the nature of the contract, but in the latter it depends entirely upon locality. Contracts to be performed on waters not navigable are not maritime any naore than those made to be performed on land; nor are torts cognizable in the admiralty, unless com- mitted on waters within the admi- ralty and maritime jurisdiction, as de- fined by law. The admiralty jurisdic- tion is not necessarily subject to the same Umitatipns as are imposed upon the power of congress to regulate com- merce, as conferred in the constitution. These are entirely distinct things, hav- ing no necessary connection with one another. The case of Insurance Co. u. Dun- ham, 11 Wall. 1, in which the supreme court were called upon to consider, in the light of the recent expansion of the admiralty jurisdiction, whether a policy ADMIRALTY 35 ADMIRALTY of marine insurance was not a contract which ought to be deemed maritime, gave further elucidation to the meaning of the g^ant of admiralty jurisdiction, in respect to the nature of the causes of action embraced. The opinion explains that, by a series of decisions of the su- preme court, it is established that the admiralty and maritime jurisdiction granted by the constitution is not lim- ited by the restraining statutes or judi- cial prohibitions of England, but is to be interpreted with reference to analo- gous jurisdictions in other countries constituting the commercial world. As respects the contracts which are of ad- miralty cognizance, the English rule which limits the jurisdiction nearly to contracts made upon the sea, and to be executed thereon, does not prevail; but the criterion is the nature and subject- matter of the contract, and whether it has reference to maritime service or maritime transactions. If the subject- matter of the contract is maritime, the courts of admiralty may enforce it. And the court adjudged that a policy of insurance upon a ship or cargo against marine perils is of maritime subject- matter, and recovery for a loss may be enforced by libel in personam in the district court. That the jurisdiction embraces all torts committed upon navigable waters was earlier and with less hesitation established. (See The Commerce, 1 Black, 574.) In brief, a long course of adjudica- tions (see, upon the distinction between tidal and navigable waters, Steele v. Thaoher, Ware, 91; The Chusan, 2 Story, 455; The Genesee Chief v. Fitz- hugh, 12 How. 443; Fretz ». Bull, Id. 466; Jackson v. The Magnolia, 20 Id. 296; Nelson v. Leland, 22 Id. 48; Ray- mond !'. The Ellen Stewart, 5 McLean, 269 ; McGiimis v. The Pontiac, 1 Newh. Adm. 130; 5 McLean, 359; Eads v. The H. D. Bacon, 1 Newh. Adrri. 274; Scott V. The Young America, Id. 101; The Moses Taylor, 4 Wall. 411 ; The Hine v. Trevor, Id. 555; The Belfast, 7 Id. 624; The Eagle, 8 Id. 15; The Leonard, 3 Ben. 263 ; Cunningham v. HaU, 1 Cliff. 43; The General Cass, h Am. L. T. Rep. 12 ; The Backus, 1 Newh. Adm. 1 ; The Jenny Lind, Id. 443 ; and upon the ob- jection that the subject-matter has arisen in intei-nal commerce. Carpenter V. The Emma Johnson, ' 1 Cliff. 633 ; The Leonard, 3 Ben. 263; The Hardy, 1 Dill. 460; The Thomas Swan, 6 Ben. 42; The Mary Gratwick, 2 Sawyer, 342; Reppert v. Robinson, Taney, 492; The Sarah Jane, 1 Low. 203; Roberts v. Skolfield, 8 Ware, 184; The Wave, BlatcJif. Sj- H. Adm. 235; The John Gil- pin, Olc. Adm. 77), have fully developed and established the principles that the term admiralty, as used in the con- stitution, is not necessarily to be con- strued as subject to all the restrictions imposed upon it in -English jurispru- dence at the time when the constitution was framed, but the grant confers ad- miralty powers as generally understood throughout the civilized world; that it is in no respect limited to the high seas, or dependent upon the ebb and flow of tides, or the bounds of counties, but extends over all waters of the United States which are actually navigable, whether found so by their original char- acter, or made so by artificial improve- ment; and that thus construed it em- braces not only all torts committed upon them, but also all contracts which are to be executed upon them, or relate to maritime services and transactions. In England, it is considered that there are two coui-ts, the instance court and the prize com-t. The same judge pre- sides in both courts ; in the former, he sits by virtue of a commission under the great seal, enumerating the objects of the jurisdiction, but specif ying nothing relative to prize ; in the latter, he sits by virtue of a commission, which issues in every war, under the great seal, to the lord high admiral, or commissioners for executing that office, requiring the court " to proceed upon all and all man- ner of captures, seizures, prizes, and reprisals of ships and goods, which are or shall be taken, and to hear and de- tennine according to the course of the admiralty and the law of nations." In the United States, the double jurisdic- tion is recognized, and it is common to speak of proceedings ' ' upon the instance side of the court," as distinguished from prize proceedings ; but the whole jm-is- diction, as respects original suits, is ADMIT 36 ADOPT vested in one tribunal, the district court of the United States. There ia also an important criminal jurisdiction. ADMIT. 1. To receive or take, as to admit evidence on the trial of a cause. Admissible : that which by the rules of evidence is entitled to be received. Ad- mission : the act or fact of receiving. 2. To recognize a person's qualifica- tions for a franchise; to make one a member of a privileged class or com- pany, as to admit an attorney to the privilege of practising law, or an indi- vidual as member of a, corporation. Admission : the act of receiving or of constituting membership. 3. To acknowledge or assent to an allegation ; to confess or consent to the truth of something asserted. Usually spoken of an assertion against one's in- terest, but without importing any thing tortious or criminal in the thing assert- ed, an idea which is pretty strongly im- plied in confess ; or any promise or sur- render of a right, one or other of which is usually indicated by consent. Ad- mission : the act of acknowledging some- thing asserted; also the expression, writ- ten or oral, in which such acknowledg- ment is conveyed. Thus a party to a suit is said to be bound by admissions in his pleadings; and admissions made out of court are received in evidence against the party by whom they were made, or to impeach a witness. Admission, in English ecclesiastical law, is applied to the declaration of the bishop, that he approves of the parson presented to serve the cure of any church. When a patron of a church has made presentation of a candidate, the bishop, upon examination, admits the latter, by saying admitto te habilem. Admittance, in English real prop- erty law, denotes the form whereby a tenant is inducted by the lord of the manor into possession and enjoyment of a copyhold estate; corresponding with livery of seisin in the case of an estate of freehold. ADMITTENDO IN SOCIUM. A writ fur associating certain persons, as knights and other gentlemen of the county, to justices of assize on the circuits. {Reg, Orig. 206.) Wharton. ADMONITION. A judicial reprimand to an accused person on being discharged from further prosecution. This was au- thorized by the civil law as a punishment for slight misdemeanors. Moziey ^ iV. Admonitio trina. A triple or three- fold warning, given, in old times, to a prisr oner standing mute, before he was subject- ed to the peine forte et dure. 4 Bl. Com. 325 ; 4 Steph. Com. 391. ADOLESCENCE. The period be- tween twelve in females and fourteen in males till twenty-one years of age. Whar- ton. ADOPT. 1. To take; to make that one's own which originally was not so. Adoption : a voluntary acceptance of an act of another person, a child of other parents, &c., to be the same as if one had done the act, or begotten or given bu-th to the child. Adoption of children was formally au- thorized and regulated by the civil law ; and France, Germany, and Spain, fol- lowing the civil law, have long made pro- visions on this subject; and such laws seem to have formerly existed in Louis- iana, but were abrogated by art. 232 of the civil code. In England and through- out the common-law states of this coun- try, adoption of children has, until very recently, or except when in rare instances it was authorized by some special or private law, been a purely voluntary or social act, depending for its continuance, and any benefits to grow from it, on the mutual will of the parties ; though the objects of adoption have been partially attainable by resort to the laws of ap- prenticeship. In New York and in Massachusetts, adoptions are now au- thorized and regulated by statute. The New York statute (the act of June 25, 1873, ch. 830) defines adop- tion as regulated by the act to be "the legal act whereby an adult person takes a minor into the relation of child, and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor." It designates the per- sons who may adopt or be adopted, and what consent of third persons shall be required; and prescribes the mode in which the agreement of adoption shall be solemnized, before a county judge. And it provides that a child, when adopted, shall take the name of the person adopt- ing, and the two thenceforth shall sus- tain toward each other the legal relation of parent and child, and have aU the ADKIFT 37 ADULTERY rights and be subject to all the duties of that relation, excepting the right of in- heritance, and except as respects the passing and limitations over of real and personal property under and by convey- ances, wUls, devises, and trusts; and that the natural parents of the child adopted are relieved from all parental duties toward and responsibility for the child. An act of the legislature authorizing a man and wife named to adopt, without other words, a child mentioned, confers not merely the riglit to take the child into the family to reside (for which no legislation was needed), but the right to constitute the relation of parent and child, witli all the consequences of that relationship. The child adopted under such an act becomes, for all legal purposes, the child of the per- son adopting it, and in particular, on the death of such person, will inherit as a child, in preference to a nephew. Vidal v. Commagere, 13 La. Ann. 516. 2. To select; to choose one from sev- eral objects. To adopt a route for the transportation of the maU, means to take the steps neces- sary to cause the mail to be transported over that route. Rhodes v. United States, lieu. 47. ADRIFT. Sea^weed between high and low water mark, which has not been deposit- ed on the shore, and which during flood-tide is moved by each rising and receding wave, is adrift, within the meaning of Gen. Stats. ch. 83, § 20, although the bottom of the mass may touch the beach. Anthony v. Gifford, 2 Allen, 549. AdscriptuB glebee. Attached to the land. Described a class of slaves who were by law attached to certain lands in such manner that neither slaves nor land could be sold separate. They must make a certain yearly payment to the owner of the soil, but were entitled to retain all beside that they could gain from the land for themselves. ADULT. In our law, a person who has attained full age, or legal majority, has passed the twenty-first year. ADULTERATION. The act or of- fence of corrupting articles of com- merce, especially of food or drink, by the admixture of foreign substances. The Stat. 23 & 24 Vict. ch. 84, § 1, (1860), seems to treat adulteration as mixing with an article of food or drink, "any ingredient or material injurious to the health of persons eating or drink- ing, such article." But the later Stat. 35 & 36 Vict. ch. 74, § 3, treats arti- cles mixed with any other substance with intent fraudulently to increase the weight, as adulterated. It is not clear that the addition of a wholesome article, as of pure water to milk, is adulterating. People v. Tauerback, 6 Park. Cr. 311. The addition of water or any substance other than a sufficient quantity of ice to preserve milk while on transportation to market, is herebv declared an adulteration. N. Y. Laivs, 1864, 1196, ch. 544, § 4. ADULTERINE. Children begotten by an adulterous act of intercourse. Adulterine guilds. Traders acting as a corporation without a charter, and pay- ing a fine annually for permission to ex- ercise their usurped privileges. Smith's Wealth of Nations, b. 1, ch. 10. ADULTERY. The wrong (in some jurisdictions also a crime) of sexual in- tercourse by a married person with an- other than the spouse. Or, adultery con- sists in sexual intercourse between a married woman and a man other than her husband, the essence of the ofience being the causing uncertainty as to issue. As wUl be seen by a glance at the de- cisions mentioned below, there is a con- flict in the use of the term in difierent jurisdictions, which can be only par- tially resolved; and to do this requires a careful discrinadnation between the proper meaning of the word and the operation of penal enactments directed to the wrong by its nature. 1. Sexual intercourse by a woman who is married, with a man other than her husband, is adultery upon her part, by all the authorities, and without ques- tion. 2. Sexual intercourse by a man who is married, with a woman who is not his wife, is adultery upon his part; that is, it is embraced within the term, as gen- erally used and understood; although it may not be a punishable offence, nor even (as in England) recognized, stand- ing alone, as a cause for which the wife of the wrong-doer may have a divorce. 3. Sfexual intercourse between a mar- ried person and an unmarried gives rise to a perplexing question as to the char- acter of the act of the unmarried par- ticipator. Is that act adultery by reason of the married status of the other party, or is it simple fornication in the single ADULTERY 38 ADULTERY person, while adultery in the married one? Upon this question the decisions are in conflict, turning, however, not only upon the mere meaning of the term, but often upon the provisions and defi- nitions of some particular statute of the jurisdiction. In very general usage, the word is allowed to characterize an un- lawful intercourse between two persons, either of whom is married to a third. And this use of the term, if established, would justify the distinction taken in the books Ijetween double adulteiy, where both parties are married to other persons, and single adultery, where one only is. For if the act of the man, for instance, being adultery in view of his own marriage, is also adultery in view of the woman's, it is strictly a double adultery; whereas, aside fi-om this, there would be no more need of calling the offence double because two persons im- plicated in it were each guilty, than there is in the case of conspiracy, riot, or other offences requiring mutuality. But in the strictest view, and according to the closer and more technical use of the word, it characterizes the wrong of breaking one's own marriage vow by intercourse with a third person, and does not extend to the participation in another's breach of his or her marital ob- ligations. But aeeWIiart. Cr. i. §2643. 4. If neither of the parties is subject to an existing marriage, the intercourse is not adultery. Adultery is not limited to unlawful inter- course by a married woman, but includes unlawful intercourse by a married man, with either a married or single woman ; and this is so of adultery, either as a punish- able offence or as a cause of divorce. Be- fore the adoption of the revised statutes, an unmarried man having sexual intercourse with a married woman would not be guilty of adultery. Commonwealth v. Call, 21 Pick. 509. If the woman is unmarried, the offence does not amoimt to adultery. In the ab- sence of a statute provision, the term does not cover intercourse with an unmarried woman, though the man is married. State V. Armstrong, 4 Minor, 335 ; State v. Lash, 1 Harr. 380. Adultery is the illicit intercourse of two persons, one of whom at least is married. State V. Hinton, 6 Ala. 864; HuU v. Hull, 2 Strobh. Eq. 174. Sexual intercourse with a married wo- man is adultery, and not simple fornica- tion. Therefore, when defendant, on an indictment for fornication, proved a mar- riage between himself and the woman im- plicated, and the state offered to prove that the woman had, at the time of the alleged marriage, a husband living, held, that the evidence was incompetent, as it tend- ed to prove the defendant guilty, not of the offence charged, but of a different one. State V. Pearce, 2 Blackf. 318. An unmarried man, who has unlawful intercourse with a married woman, from which spurious issue may arise, is guilty of adultery. State v. Wallace, 9 N. H. 515. Under Iowa Stat. 1860, § 4347, an un- married person may be indicted and con- victed of adultery, committed with the hus- band or wife of a tliird person. State v. Wilson, 22 Iowa, 364. Adultery is the sin of incontinence be- tween two married persons ; or, if but one of the persons be married, it is nevertheless adultery ; but in this last case it is called single adultery, to distinguish it from the other, which is double. Jacob, Adultery is the sin of incontinence be- tween persons one or both of whom are married. If both are married, it is double adultery, or adultery on the part of both. If but one of them is married, it is single adultery, and the married party alone is guilty of that offence. Criminal inter- course between a married woman and an unmarried man is not adultery on the part of the man, but the woman is guilty there- by of that offence. Hunter v. United States, 1 Finn. 91. A married man who has criminal inter- course with his own daughter, she being a single woman, is guilty of incestuous adul- tery, and she of incestuous fornication. Cook V. State, 11 Ga. 53. Under the Pennsylvania- act of 1705, an indictment for adultery cannot be support- ed against an unmarried man. Bespublica ». Eoberts, 2 Dall. 124. Illicit intercourse by an unmarried man with a married woman is only fornication in him. Conunon wealth v. Laffierty, 6 Gratt. 672. Under the statute of Alabama, adultery and fornication are distinct offences; and under an indictment for adultery, contain- ing but a single count, no conviction can be had, if the evidence shows that both the parties were unmarried. Smitherman i). State, 27 Ala. 23. To support a conviction for adultery, it must be charged and proved that one of the parties is married to some other person than the particeps criminis. Tucker v. State, 35 Tex. 113; Territory v. Whitcomb, 1 Mon. T. 358. To nearly same effect Miner v. People, 58 III. 59. After a divorce for the husband's adul- tery, he does not, by marrying and cohabit- ing with a second wife, commit the crime of adultery. An indictment in such case, in Massachusetts, should be under Stat. 1784, ch. 40, § 2 ; and the second marriage, with the other facts constituting the of- ADVANCE 89 ADVANCEMENT fence, should be set forth. Commonwealth V. Putnam, 1 Pich 136. If a man whose wife has been divorced from him marries again, and cohabits with the second woman, without having obtained a divorce from the first, he cannot be found guilty of adultery, either at common law or by the statutes of Maine. State v. Weatherby, 43 Me. 258. ADVANCE, V. To furnish value be- fore it becomes due, or in aid of an en- terprise from which a return is expected. Advance, n., or Advances. Money or value thus supplied before time. An advance of money on a contract, strictly speaking, is a payment made before an equivalent is received. Gibbons v. United States, Dev. 51. As used in a will, with reference to money or property received from the tes- tator by his children, the word advances includes loans as well as gifts, whether taken according to its meaning in law, or its meaning in common usage. Nolan v. Bolton, 25 GH. 352. Advances is not the appropriate term for money or property furnished by a father to his children, as a portion of his estate, and to be taken into account on the final partition or distribution thereof. In legal parlance, it has a different and far broader signification. It may characterize a loan or a gift, or money advanced, to be repaid conditionally. Chase v. Bwing, 51 Barb. 597. Advances, as used in a will, may not include moneys paid for maintenance of testator's children. Vail v. Vail, 10 Barb. 69. Advances may include rents of build- ings. Ormsby v. State, 6 Nev. 283. A mule is not an advance, within the sense of the South Carolina act, to secure advances made for ag:ricultural purposes, and, therefore, a lien given under that act, to secure the payment of the price of a mule purchased, is void. McCuUough v. ADVANCEMENT. Money or prop- erty supplied by a person to another who will be his heir or distributee, in anticipation of and to be deducted from the share of the recipient in the donor's estate; as distinguished from a loan, made to be repaid in any event, or a gift, which would benefit in addition to the inheritance or distributive share. An advancement is a gift made during his lifetime, by a person who afterwards dies intestate, to his heir or distributee, of something by anticipation of what the donee would by law receive upon the death of the donor. .Grattan v. Grattan, 18 III. 167 ; Osgood v. Breed, 17 Mass. 358 ; Chris- ty's Appeal, 1 Grant Cos. 369 ; Cawthorn V. Coppedge, 1 Swan, 487; Miller's Ap- peal, 31 Pa. St. 337. Advancement designates money or prop- erty furnished by a testator to his chil- dren, as a portion of his estate, and to be taken into account in the final partition or distribution thereof. Advances is not the appropriate term for money or property thus furnished. Chase u. Ewing, 51 Barb. 597, 612. i'he true notion of an advancement is a giving by anticipation the whole or a part of what it is supposed a child will be enti- titled to, on the death of the parent or party making the advancement. Osgood v. Breed, 17 Mass. 358; Dilman v. Cox, 23 Ind. 440. An advancement is a free and irrevocable gift by a parent in his lifetime to his child on account of such child's share of the estate after the decease of the parent dying intestate. Fellows v. Little, 46 N. H. 27. To constitute an advancement, the .prop- erty must have been received from the in- testate himself. Callender v. M'Creary, 5 Miss. 356 ; Christy's Appeal, 1 Grant Cos. 369. To constitute an advancement, the ances- tor, in his lifetime, must divest himself of all interest in the property. Crosby v. Cov- ington, 24 Miss. 619. A debt due from an heir to the intestate is not to be regarded as an advancement. Osgood V. Breed, 17 Mass. 359 ; Proctor v. Newhall, Id. 93. Money charged by a parent against a child, in the ordinary form of account- books, is not to be treated as an advance- ment. Ashley's Case, 4 Pick. 21. Where money is lent or paid by a father to or for a son, at the request of the latter, and an account is stated by the father and interest charged, such loan or payment is not an advancement, but constitutes an in- debtedness. Harris's Appeal, 2 Grant Cas. 304. In the absence of any evidence of inten- tion to the contrary, notes held by an intes- tate against his son are evidences of debt, and not of 'an advancement. Vaden v. Hance, 1 Bead, 300. Trifling gifts ought not to be charged as advancements. Mitchell v. Mitchell, 8 Ala. 414. Advancements are understood to be gifts of money or personal property, for the pre- ferment and settling of a child in life, and not such as are mere presents of small value, or such as are required for the main- tenance and education of the child. Mead- ows V. Meadows, 11 Ired. L. 148. A gift for the purpose of pleasure or amusement merely, as of a saddle-horse, or a buggy, is not considered an advance- ment ; but the gift of a stallion, to be em- ployed as a foal-getter and for profit, is an advancement. Ison v. Ison, 5 Rich. Eg. 15. A gift to a grandchild is deemed to be a gift absolute, rather than an advancement. Shiver v. Brock, 2 Jones Eq. 137. ■ Advancement is a well-known term, both in conveyancing and in equity law. In marriage settlements, a power of advance- ADVERSE 40 ADVERSE ment is commonly given to the trustees, that is to say, a power is conferred upon them to raise some portion (not, as a rule, to . exceed one half part) of the capital moneys to which each child of the marriage is either actually or contingently entitled under the settlement for his or her advance- ment in the world ; for his or her appren- ticeship in a profession or trade ; or for his or her bringing out in society; or (if in- tended for the church) for his education at one of the universities. In equity, the term has a similar mean- ing, but a somewhat different application. JBroum. ADVERSE. Opposed ; that which resists a claim or proceeding. Adverse claim. Where the sheriff, in levyiiig an execution upon the goods of a debtor, finds that some third person claims the goods as his own, he may have an inter- pleader summons requiring the execution creditor and such third person to settle the right to the goods between them ; so also, where the seller of goods attempts to stop them in transit, and the buyer insists upon having the goods delivered to him, the wharfinger or other person in custody of the goods may have an interpleader sum- mons requiring the two parties to litigate between themselves their adverse claims. Brown. Adverse party, Who is, see Cotes V. Carroll, 28 How. Pr. 436; Garnsey v. Knights, 1 Thomp. ^ C. 259. Adverse possession, is a phrase in common use with respect to real prop- erty, to signify a possession avowedly contrary to some claim of title in another person. Its important consequences are three. By statutes declaratoiy of the law of champerty, or forbidding the sale of pretended titles, which ei^ist in many of the states, an owner of laud, however good his title may be, is precluded, while another person is in possession adverse to him, from making a convey- ance ; he cannot by deed vest his title in another, leaving him to sue for pos- session, but any action must be brought in his own name. Then, imder statutes of limitations an adverse possession con- tinued for a specified term of years constitutes a defence to an action for possession, though founded upon a title apparently good. Moreover, by the law of many of the states adverse posses- sion, of proper character and length, operates to vest title in the possessor. To these may be added that actual pos- session of land is notice to put all per- sons disposed to deal in respect to it upon inquiry as to the rights of the pos- sessor; no one can buy or hire lands in occupation, and deny that he knew the rights of the occupant. The meaning of the phrase is said to be not quite the same when employed with reference to the rules forbidding sale of lands under adverse possession, as when employed with reference to the statute of limitations. Adverse possession, such as will, un- der the statute of limitations, bar an entry, must possess these elements: it m.ust commence under color of title ; must be open and notorious; must be peaceable; and must continue unbroken throughout the term prescribed by the statute. A possession of land may be adverse, so as under the statute of limitations to bar an action, without being adverse in such sense as to avoid a deed, under statutes against champerty, or gelling pretended titles. Thus, although a tenant is in pos- session under such circumstances as will, after twenty years, bar a right of entry by the lessor, yet it does not follow that a con- veyance within that time is void. Barret V. Coburn, -3 Mete. 510. The adverse possession under claim of title which will avoid a deed as champer- tous under the New York statute must be under some specific title, which, if valid, would sustain the claim ; a general asser- tion of ownership, without reference to a particular title, or a reliance upon a title which would not entitle the party to pos- session, is insufficient The party in posses- sion must hold adversely, " claiming under a title," and not "under claim of title." The distinction is substantial and mate- rial. Fish «. Fish, 39 Barh. 513. One who claims under a deed from a judgment debtor has not such an adverse possession as will avoid a conveyance made by a purchaser under an execution on the judgment. Jackson v. Collins, 3 Cow. 89. After a person in possession had con- fessed the title of an adverse claimant, in an action of ejectment, it was held that his possession ceased to be adverse in such sense as to invalidate a conveyance by the plaintiff in ejectment. Keneda v. Gardner, 4 HiU, 469. Adverse possession is that kind of con- tinued occupation and enjoyment of real estate which indicates an assertion of right on the part of the person maintaining it. Rivers v. Thompson, 43 Ala. 633. The character of adverse possession is given, not by notice to persons interested, but by the nature of the acts done by the party. There must be a hostile intent, and that intent must be manifested by outward acts of an unequivocal kind. The open act of entry on the land, with the declared in- ADVERSE 41 ADVOCATE tent to disseise, constitute a disseisin, with- out notice to the disseisee, or knowledge on his part of the entry and ouster. Lodge v. Patterson, 3 Watts, 74. To constitute such an adverse possession as will bar a right of entry, it must be ac- companied with what, the law will consider, prima facte, a good titlCi Jackson v.. Frost, 6 Cow. 346. It is not necessary that an adverse pos- session, in order to be available within the statute of limitations, should commence under an e&ctual deed. If the entry be under color of title, the possession will be adverse, however groundless the supposed title may be. La Frombols v. Jackson, 8 Cow. 589. To make a holding or possession of lands adverse, it need not be accompanied by a claim of title on the part of the possessor, with a denial of title in the legal proprietor. An adverse possession is a possession not under the legal proprietor, but entered into without his consent, either directly or indi- rectly given. It is a possession by which he is disseised and ousted of the lands so pos- sessed. To make a disseisin, it is not nec- essary that the disseisor should claim title to the lands taken by him, or deny or dis- claim the title of the legal proprietor. To determine whether or not the possession be adverse, it is only necessary to find out whether it can be considered as the con- structive possession of the legal proprietor. If it be with his consent, express or im- plied, it is his possession, and not adverse. If it be without his consent, and against his will, it is adverse. Bryan v. Atwater, 6 Day, 181 ; French «. Pearce, 8 Cmm. 439. A possession, to be adverse, must be so open, notorious, and important as to give notice to parties that a claim of right is intended thereby ; that the right of the true owner is invaded intentionally and with a purpose to assert a claim of title adversely to his. Carrol v. Gillion, 33 Ga. 539; Beatty v. Mason, 30 Md. 409. Adverse possession for twenty years, by several successive persons, in order to bar an entry, must be continued by a regular chain of privity between them. Thus, where one entered, and then another en- tered upon him, claiming adversely, and, by a compromise with the first, retained possession of a part of the premises, held, that there was not a continuity of posses- sion witliin the rule. Jackson v. Leonard, 9 Cow. 653. Actual possession of part of a tract of land, with claim of title to the whole, under a written instrument, is sufficient to consti- tute adverse possession of the whole tract. Possession of land under a lease, the good faith of which is evidenced by the demand and receipt of rent, is good adverse posses- sion, to the extent of the land cleared and cultivated by the lessee. Finlay v. Cook, 54 Barb. 9. Mere continuance in a possession, which originated under a lease, after the rever- sioner is entitled to enter for a condition broken, and before the original term had expired by'lapse of time, is not adverse to the right of the reversioner to re-enter. Gwynn v. Jones, 2 GUI ^ J. 173. Though adverse possession and ouster or disseisin are sometimes synonymous, they are not always so. A disseisin may commence by force or fraud ; an adverse possession may commence by force, but not by fraud, as, for instance, under a deed ob- tained by fraud or by forgery. Livingston V. Peru Iron Co.,-9 Wend. 511. Adverse verdict. The verdict of a county commissioners' jury is adverse to the petitioner seeldng a review of a verdict for land damages, if such verdict does not exceed the damages allowed to him by the selectmen. Hamblin v. Barnstable County, 16 Gray, 256. Adverse i^tness. A witness whose mind discloses a bias hostile to the party examining him; not a witness whose evi- dence, being honestly given, is adverse to the case of the examinant. Brawn. ADVICE. Couiiselgiven,oranopiniou expressed as to wisdom of future con- duct; also, information or notice given of something that has occurred. Advices (plu.') is used generally of information of past occurrences, not of counsel. ADVISE. To give counsel, or recom- mend a plan or course; also, to give notice. ADVOCATE. Is used in English and American law to indicate, in a gen- eral and untechnical way, a professional person charged with the oral conduct of a cause or interest; such as is more technically known as a barrister or coun- sellor. Under the civil law, and in Scot- land, the term seems used as nearly cor- responding to these two. Advocate is a person learned in the law, who assists his client with advice and pleads for him in open court. The barristers in the ecclesiastical courts are so termed ; as are also the barristers in Scotland. Holihouie. The patron of a cause who assists his client with advice and pleads for him. A barrister practising before the supreme court. Bell. In the Eoman law, and also in those English courts which have largely moulded themselves upon that law, the persons who undertake and have the Uberty to plead the causes of others are called advocates. Their duties are analogous to those of bar- risters, and since the recent acts, which have thrown open to all practitioners the practice in all the various courts, the term advocate is used interchangeably with, although less frequently than, that of bar- rister. In ecclesiastical law, those persons whom ADVOCATION 42 ^QUITAS we now call patrons of churches, and who reserved to themselves and their heirs a liberty to present' to the living on any avoidance, were also called advocati eccle- si(B, i.e., defenders of the church. Brown. Lord advocate, is the principal public prosecutor in Scotland. He is assisted by a solicitor-general and four junior counsel, termed advocates depute. He is under- stood to have the power of appearing as prosecutor in any court in Scotland, where any person can be tried for an offence, or to appear in any action where the crown is interested ; but it is not usual for him to act in the inferior courts, which have their respective pubUc prosecutors, called pro- curators-fiscal, acting under his instructions. He does not, in prosecuting for offences; require the intervention of a grand jury, except in prosecutions for treason, which are conducted according to the English method. The lord advocate is virtually secretary of state for Scotland, Wharton. Faculty of advocates, is the name of the bar of Scotland in Edinburgh. Only a small proportion, however, of these profess to be practising lawyers, and it has become a habit for country gentlemen to acquire the title of advocate, in preference to tak- ing a degree at the Scottish universities. The dean of faculty and the two crown lawyers, the lord advocate and solicitor- general, are the only persons who take pre- cedence at the Scottish bar, independent of seniority. The lord advocate and the so- licitor-general are the only members of the faculty who wear sUk gowns and sit within the bar. Wharton. AD"VOOATIO]Sr, in Scotch law, is a process by which an action may be carried from an inferior to a superior court before final judgment in the former. Wharton. ADVOWSON. The right of presenta- tion to a church or benefice ; and he who has the right to present is called the patron, or patranus, sometimes also advocatus, and sometimes defensor. Advowsons are of two kinds : appendant, and in gross. An ad- vowson appendant, means an advowson which is, and which from the first has been and ever since continued to be, appended or annexed to a manor, so that, if the man- or were granted to any one, the advowson would go with it as incident to the estate. An advowson in gross signifies an advow- son that belongs to a person, but is not an- nexed to a manor; so that an advowson appendant may be made an advowson in gross by severing it by deed of grant from the manor to which it was appendant. Advowsons are also either presentative, coUative, or donative ; presentative, when the patron has the right of presentation to the bishop or ordinary, and also to require of him to institute his clerk, if he finds him qualified ;. collative, when the bishop and patron happen to be one and the same per- son, so that the bishop, not being able to present to himself, performs by one act (termed collation) all that is usually done by the separate acts of presentation and institution ; and donative, when the king or a subject foimds a church or chapel, and does, by a single donation in writing, place the clerk in possession, without presenta- tion, institution, or induction. Again, advowsons are either advowsons of rectories or advowsons of vicarages. Brown. ADVOWTRY. An old form of the word Adultery, q. v. JBdi&care in tuo proprio solo non licet quod alter! noceat. To build upon your own land what may injure another is not lawful. A proprietor of land has no right to erect an edifice on his own ground, interfering with the due enjoyment of adjoining premises, as by overhanging them, or by throwing water from the roof and eaves upon them, or by obstructing ancient lights and vnndows. Broom Max. 369. .Sidificatum solo, solo cedit. What is built upon the land goes with the land. Every thing built upon land belongs to the proprietor or purchaser of the land. This principle is within the general maxim, Accessorium non duck, sed sequitur, suum principale, q. v. But there are many qualifications and excep- tions to this rule. Thus, as between landlord and tenant, where the tenant has erected on the demised premises a building to protect machinery necessary to the carrying on of his business, the machinery and the building are both re- garded as accessory to his trade rather than to the land, and do not pass to the landlord. Where one builds upon gi-ound in the belief that it is his own, while in reality it belongs to another, the building so erected belongs to the real proprietor of the land ; but the builder is entitled to receive from, him its value. Trayn. Max. 269. .Siquitas sequitur legem. Equity follows the law. In the application of the principles of equity, the courts fol- low the rules of the law in aU cases within the common-law rules. It is only where the law is ineffectual that equity gives redress, following, how- ever, the rules of law. Thus, courts of equity cannot establish a rule of prop- erty different from that which the law has established. Keech v. Hall, 1 Dougl. 21. And where rival equities are equal in point of merit, the law prevails. Boone v. Chiles, 10 Pet. 177, 210. -aiSTIMATIO 43 AFFINITAS iEstimatio capitis. Valuation of life. The value of a human life. The Saxon laws fixed a certain price or valuation of the life of every man, according to rank, &c. In later times, the amount recover- able as damages for causing the death of any person is sometimes termed the cestimatio capitis. iQtate probanda. An obsolete Eng- lish writ. It was directed to the sherifE uf a county, commanding him to summon twelve men, as well knights as other hon- est and lawful men, to be before certain commissioners previously appointed to in- quire whether or not the kmg's tenant, holding in chief by chivalry, was of full age to receive his lands into his own hands. The commission by which the above com- missioners were appointed was thence called "the commission pro cetate pro- banda." Brown. AFFIANT. One who makes an afiB.- davit. Deponent is quite usually em- ployed in this sense ; but, strictly, affiant is the author or subscriber of an affida- vit; deponent, of a deposition. AFFIDAVIT. An oath in writing; ; and to make affidavit of a thing, is to tes- ■ tify it upon oath. An affidavit, generally speaking, is an oath in writing, sworn be- fore some person who had authority to ad- minister such oath. Jacob ; Kapp ;;. Dudo, 1 Mich. N. P. 189. Any form of legal oath which may be taken ; not, of necessity, to be in writing. Baker v. Williams, 12 Barb. 527. That an answer, read to oppose a motion, is not an affidavit, see Blatchford v. N. Y. & New Haven E. R. Co., 7 466. Pr. 322. The description in Bacon's Abridg- ment (tit. Affidavits) of an affidavit will hardly stand any critical examination as a definition. It is there called an oath in writing administered. How that can be, when the form is presented orally, is not very clear. Soule v. Chase, 1 Abb. Pr. n. s. 48. Upon the distinction between affidavit and deposition, see Stimpson v. Brooks, 3 Blatchf. 456. Distinction between affidavit and oath, see Burns v. Doyle, 28 Wis. 460. An affidavit is simply a declaration, on oath, in writing, sworn to before some per- son who has authority to administer oaths. Its validity does not depend on the fact whether it is entitled in any cause or in any particular way. Without any caption whatever, it is nevertheless an affidavit. Harris v. Lester, 80 III. 307. There can be no such thing as an un- written affidavit. Wmdley v. Bradway, 77 N. C. 3,33. AFFILIATION. Establishment of paternity; judicial determination that a man is the father of a bastard child. Also called FiLiAiioif , q. v. AFFINITAS; AFFINITY. A re- lationship resulting from marriage, either between the husband and the blood relations of the wife, or between the wife and the blood relations of the husband. It is a relationship in theory of law only, not a real or physiological kindred. Affinity is distinguished into three kinds : Direct, or that subsisting between the hus- band and his wife's relations by blood, or between the wife and the husband's rela- tions by blood. Secondary, or that which subsists between the husband and his wife's relations by marriage. Collateral", or that which subsists between the . husband and the relations of his wife's relations. Wharton. The relation contracted by marriage be- tween a husband and his wife's kindred, and between a wife and her husband's kin- dred, in contradistinction from consanguin- ity, or relation by blood. Carman v. Newell, 1 Den. 25 ; Higbie v. Leonard, Id. 186 ; Pad- dock V. Wells, 2 Barb. Ch. 331. By a marriage, one party thereto takes by affinity the same relation to the kindred of the other that the latter holds by con- sanguinity. There is no rule by which the relation by affinity is lost upon a dissolu- tion of the marriage, more than a relation by blood is determined by the death of those from whom it is derived. As the dissolution of a marriage once lawful, whether by death or divorce, has no effect on the issue, so it should not be allowed to annul a relation by affinity which the mar- riage produced. Spear v. Kobinson, 29 Me, 531. Affinity is the tie which arises from mar- riage betwixt the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband. If the husband or wife die, the affinity ceases, unless they have issue which survives and is living. There is also affinity between the husband and one who is connected by marriage with a blood relative of the wife. But there is no affinity between the blood relatives of the husband and those of the wife. Paddock v. Wells, 2 Barb. Ch. 331. Relationship by affinity may exist be- tween the husband and one who is con- nected by marriage with a blood relative of the wife. lb. Where the deceased husband of defend- ant, a widow, was a first cousin of the vice- chancellor, and defendant had a son by that husband, who was still living, it was held that there was a relationship by affinity between defendant and the vice-chancellor. The death of the husband would have sev- ered the tie of affinity had not the living issue of the marriage, commingling the blood of both parties, continued to preserve the affinity. lb. Where "C's father married the widow of the defendant's brother, and subsequently died, it was held that there was no kindred AFPIRM 44 AFFKAY or subsisting afBiiity between defendant and C, which could operate as a priacipal cause of challenge to C aa a juror. Cain i;. Ingham, 7 Cow. 478. Where the widow of the justice's brother who became the wife of the plaintiff's brother was dead, and there was no evi- dence that there was any issue of the mar- riage, it was held that the justice was not disqualified by reason of affinity. Carman V. Newell, 1 Den. 25. Two men who marry sisters are related by affinity. Foot v. Morgan, 1 HiU, 654. AFFIRM. Generally, to assert or declare. 1. More technically, to make solemn declaration under judicial sanc- tion, which, without involving in form an appeal to Almighty God or an invo- cation of supernatural punishment for falsity, expresses the wiUingness of the speaker to submit to the temporal pun- ishment of perjury if he testifies un- trvdy. Persons who entertain conscien- tious scruples against the form of a ju- dicial oath are allowed, when summoned as witnesses, &o., to use the form, "I solemnly and truly declare and affirm," or words to like effect, but without importing any relaxation of the punish- ment of perjury if they give false tes- timony. Affirmation : a solemn asser- tion or declaration thus given. Affirm- ant : one who aiffirms instead of taking oath. 2. To ratify or confirm one's past act, or the act of one's agent. To express this idea, ratify or confirm is more often used. 3. To reassert or confirm a judgment, decree, or order, brought before an ap- pellate court for review. Affirmance: the decision or deliberate determination of an appellate court, that a proceeding brought before it for review is correct and lawful, and must be carried into operation. A dismissal of an appeal, for want of prosecution, is not an affirmance of the judgment appealed from. Drummond v. Husson, 14 N. Y. 60. AfBrmanti, non neganti, incumbit probatio. Upon the party affirming, not on the party denying, rests the bur- den of proof. The burden of proof rests upon the party having the affirmative of the issue. Negatives are presumed, and need not be proved; but the .party al- leging a fact which is disputed is bound to prove it. In general, the proof of the claim or cause of action alleged by a plaintiff rests with him, actori incumbit probatio, q. v. ; but if the defence goea beyond a denial of the facts constituting the alleged cause of action, and alleges facts tending to establish an affirmative defence, the burden of proving those facts is with the defendant. AFFIRMATIVE. The party who, upon the allegations of pleadings joining issue, is under the obligation of making proof, in the first instance, of matters alleged, is said to hold the affirmative, or, in other words, to sustain the burden of proof. AFFORCE. To add force to; to increase the strength of. In the earliest employment of jury trial, if the twelve did not agree, others were called in, until out of the increased number, twelve were found who did agree. This, as it was a true increase of the jury, was naturally and properly called afforcing the assize or panel. Later, the term seems applied to coer- cive measures brought to bear upon the twelve, as if to compel were the idea. AFFRAY. A mutual fight in a pub- lic place. The definitions given do not agree. "Affray," says Jacob, "for- merly meant no more than affright; as where persons appeared with armor or weapons, not usually worn, to the terror of others ; 'but now it signifies a skirmish or fighting between two or more, and there must be a stroke given or offered, or a weapon drawn." Doubtless, actual violence or battery is involved in the term as now used. Mere words will not constitute an affray. O'Neill v. State, 16 Ala. 65; Hawkins v. State, 13 Ga. 322. And a person is not guilty of an affray who offers no re^stance to an at- tack made upon him, although the at- tack is induced by insulting language used by him to the assailant. O'Neill V. State, 16 Ala. 65. But abusive and insulting language, together with acts tending to violence, such as drawing knives and attempting to use them in a public street, may amount to an affray. Hawkins v. State, 13 Ga. 322. And if one person, by such abusive language towards another as is calculated and intended to bring on a fight, induces the other to strike him, he is guilty of an AFFRAY 45 AFTER affray, though he may be unable to re- turn the blow, State v. Perry, 5 Jones i. 9 ; or if a person is willing to fight, and merely prefers to go out of the cor- porate limits, and does not strike the first blow, but by his language provokes the other to strike him, he is guilty of an affray. State v. Sumner, 5 Strobh. 53. The fight must be in a public place, Sampson v. State, 5 Yerg. 356 ; State v. Sumner, 5 Strobh- 53 ; for it is a distin- guishing element of affray that it tends to create public alarm; that it disturbs the public in their enjoyment of high- ways, parks, and other places of com- mon resort. As to what is a public place, see Public. It was held in Duncan v. Common- wealth, 6 Dana, 295, and in Klum v. State, 1 Black/. 377, that the fighting jnust be by mutual consent, by agree- ment; and in Cash v. State, Overt. 198, that it need not be. We judge the tnie rule to be that the fight must be mutual: there must be violence on both sides, as an attack by one person on another, without retaliation, is assault and bat- tery only, though in a public place. Burrill says "that affray differs from a riot in not being premeditated ; for if any persons meet together upon any lawful or innocent occasion, and happen on a gudden to engage in fighting, they are not guilty of a riot, but an affray only." But this cannot be reconciled with the cases holding a previous agree- ment to fight to be necessary ; nor is it clear that a riot must needs be premedi- tated. The distinction between the terms, as they are ordinarily employed, seems to be that an affray Usually in- volves two parties or sides only, and the violence is the ultimate object; that is, to injure the adverse contestant, as an act of malice or revenge, is the end and aim of th6 fight; whereas a riot is usually the resort of numbers of persons to violence as a means of accomplishing some unlawful purpose beyond; as to rescue a prisoner, to suppress an un- popular performance, to drive away persons of an obnoxious race or creed. The distinction, whatever it may be, is of importance, in view of the rules that for affray, only persons participating or abetting are punishable, while for riot, by-standers not engaged in suppressing it may be. See Riot ; also Mob. AFFREIGHTMENT. A contract for the use or service of a merchant vessel. AFORESAID. Previously mentioned ; already described or identified. In drafting written instruments it is usual to state, once for all, at the place where a person or subject-matter is first spoken of, the name and addition, or the particulars of description enabling the reader to identify the individual intended; and afterwards, wherever the same individual is again involved, to use only a brief, salient name, and refer to the previous description by the word "aforesaid." AFORETHOUGHT. Previously in mind; designed or intended. To constitute murder at the common law, the killing must be done with mal- ice aforethought; that is, with a precon- ceived intent to kill, as distinguished from an accidental or involuntary kill- ing, or killing in heat of passion, without conscious formation of a complete de- sign to kill. Malice aforethought was the technical term for describing the intent which distinguished murder be- fore the enactment of statutes introduc- ing degrees of murder depending on the length of time during which the purpose to kiU has been entertained, or the evi- dence of its completeness and persist- ency. The course of decision under these statutes seems to be that afore- thought imports an intention only, and does not imply that prolonged delibera- tion or complete premeditation which distinguishes murder in the first degree, hence is not sufficient in an indictment for the first degree, but, when used with- out other and stronger terms, amounts to a charge of murder in the second de- gree only. After. Under a statute which provides that, after the expiration of a given number of days from one act, another may be done, the day of the first act must be excluded, and the second act cannot be done till the day after the expiration of the given num- ber of days, counting the day after the first act as the first day. Commercial Bank v. Ives, 2 Hill, 355 ; Butts v. Edwards, 2 Den. 164. Where a statute requires an act to be done after thirty days, it cannot be done AFTERMATH 46 AGENT till the thirty-first day. Judd v. Fulton, 10 Barb. 117. After, in a statute prescribing computa- tion of time, is a word of exclusion.- Page V. Weymouth, 47 Me. 238. The words " after my debts and funeral charges are paid, I devise and bequeath as follows," &c., charge the real estate of tes- tator with payment of his debts. The word after implies, as strongly as any word can do, that the payment of debts is a condition precedent to the absoluteness of any entire devise in the will. Fenwick v. Chapman, 9 Pet. 461. AFTERMATH. The grass -which grows after the first or principal crop of hay of the season has been made ; also the right to take such last crop of grass for hay or pasturage. Against the form of the statute. A technical phrase or clause employed in indictments for statutory offences. An indictment for an offence not known to and punishable by the common law, but created by statute, should conclude ■with the averment that the act was done against the form of the statute, or statutes. The equivalent Latin phrase is contra fomiam statuti, q. v. AGE. 1. Progress of life. The length of time during which a person has lived or a thing has existed. A man's age is measured by the number of years and days from his birth to his death, or to the earlier time spoken of, whatever that may be. 2. Age is used to signify the time in a person's life at which he attains full personal rights and capacities; i.e., twenty-onte years. One who has com- pleted his twenty-first year is popularly said to be of age. 3. In a similar sense to the last, age is used of the time of life at which some particular power or capacity is understood to become vested; as in the phrases, age of consent, age of pu- berty. Age prayer or prier. A plea or mode of interposing the objection to a suit that the defendant was an infant and desired to have the suit stayed till he became of age. It was employed in ancient English practice, but is no longer in use. AGENT. One who acts for or in the place of another in virtue of an existing authority or power from him. Agency : • the relation between one who authorizes another to act in his stead, and the one who so acts. Agent must be distinguished from servant, which is one who acts by au- thority and for the benefit of another, but without standing in his place; also, from representative, which may signify (as in the case of an executor) one who was designated to act by the choice of the person whom he represents, but whose present continuing authority is derived from the law ; also, from trustee, who acts in behalf of one person, in vir- tue of an authority derived from another. Agents are general or special : a gen- eral agent is one whom a principal em- ploys to transact all his business of a designated kind ; a, special agent is one constituted for a single transaction. The importandte of the distinction is that a general agent, having a wide scope both of duty and authority, repre- sents his principal in all matters within the. ordinary limits of the principal's business, and this may be in one or more places; the latter is one whose au- thority is definitely limited, and whose duty is specified. If a general agent, acting within the limits of his employ- ment, violates instructions received from the principal, the principal alone will be liable to thu-d persons ; but if a special agent violates instructions, the principal will not be liable. Agent, is a general term, which may be used to include clerks and servants, but is by no means restricted to such. People v. Allen, 5 Den. 76. The terms attorney, and agent, import, ex vi termini, a delegation of power from another, which may be exercised in the name of the principal. Under a statute authorizing commissioners, " or any agent or attorney appointed by them," to make a certificate, a certificate made by an agent in the names of the commissioners is good. Colgin V. State Bank, 11 Ala. 222. An astronomer who assists contracting engineers in their survey, and is paid with their money, but who was not appointed by them, and cannot be discharged by them, and who is not responsible to them, is not their agent. Jones v. United States, 1 Ct. of CI. 383. Neither agent nor servant, in a statute de- fining embezzlement by an agent or servant, will include a mechanic who receives mate- rials of another to be manufactured at his own shop, and afterwards converts them to his own use. Commonwealth v. Young, 9 Gray, 5. AGGRAVATION 47 / / AGIST That the phrase " officers, agents, or ser- vants," in a statute punishing embezzlement does not necessarily include clerks, see Budd V. State, 3 Jiumph. 483. Whether agent may include both gen- eral and special agents, see Hartford, &c. Ins. Co. V. Matthews, 102 Mass. 221 ; Wilson V. Genesee Mut. Ins. Co., 14 N. Y. 418. Agent and patient. When the same person is the doer of a thing and the party to whom it is done, he is said to be agent and patient. Thus, where a widow endows herself of the best part of her husband's possessions, or where one being indebted to another, afterwards the debtor makes the creditor his executor, and the creditor retains out of the testator's assets as much as will satisfy the debt, the acting party is both agent and patient. Wharton. AGGRAVATION. Someihing con- nected with a crime or wrong, additional to its essential elements and enhancing its guilt or injurious consequences. Facts alleged in, the plaintiff's com- plaint in an action for a wrong, or in- troduced in evidence on the trial, not because they are essential elements of the wrong complained of, but because they entitle him to increased damages, are said to be introduced in aggravation of damages; as where, in an action for breach of promise of marriage, evidence that defendant, by means of the promise, seduced the plaintiff, is offered. AGGRIEVED. Damnified; injured; exposed to loss of property or rights. Many of the statutes declaring a right to appeal or bring error give it to the party aggrieved by the judgment. In this connection the word means some party to the proceeding sought to be re- view ed,whose substantial rights of person or property are prejudiced by the decision below, assuming it erroneous. Aggrieved, in a statute providing for a re- view of the admeasurement of dower, cannot be applied to a person not a party to the judgment. Lowery v. LoweTy,(iiN. 0. 110. Aggrieved applies only to one whose pe- cuniary interest is affected by the decree, or whose right of property may be estab- lished or divested thereby. Swackhamer V. Kline, 25 N. J. Eq. 503 ; Ealeigh «. Eog- ers, Id. 506. Would the party have had the thing in controversy, if the erroneous judgment had not been given? is the best test as to who is the party aggrieved. Adams v. Woods, 8 Gal. 306. The party aggrieved is the party against whom an appealable order or judgment has been entered. Ely v. Frisbie, 17 Cal. 250. A person aggrieved by the order of a probate court, within the meaning of a statute providing for appeals from such order, is one who has a present and existing interest injuriously affected by the order. Labar v. Nichols, 23 Mich. 310. A party to a decree of foreclosure and sale, who has parted with his interest sub- sequent to the commencement of the suit, but prior to the entry of the decree, cannot, in that right, maintain an appeal from the decree, under the act giving the right to a party aggrieved; though if his wife, who is also a party to the suit, retains an inchoate right of dower in the subject of the suit, he may unite with her in such an appeal. Kiefer u. Winkens, 3 Daly, 191, 89 How. Pr. 176. A person who has, since an administra- tor's sale of lands for payment of debts, acquired an interest in the lands is aggrieved by an order of the probate court vacating the proceedings of sale, and may appeal from such order. Betts v. Shotton, 27 Wis. 667. A party is aggrieved by a decree of a judge of probate, only when it operates on his property or afiects his interests directly. Deering v. Adams, 34 Me. 41 ; Veazie Bank V. Toung, 53 Me. 555. A mere garnishee of a debtor to the estate of a deceased person has no such interest in the appointment of an adminis- trator upon such estate, as to enable him to appeal from the decree of the judge of pro- bate making such appointment. Veazie Bank v. Young, 53 Me. 555. A trustee, being the representative of the creditors, is aggrieved by and may ap- peal from a decision in insolvency pro- ceedings adverse to the interests of all the creditors ; and also where he has an inter- est as trustee, in reference to his allowance or expenses, or when he is himself a cred- itor. Salmon v. Pierson, 8 Md. 297. One is not aggrieved by an order appoint- ing him administrator, so that he can appeal therefrom, if he can avoid the effect of the order by declining the appointment. Suc- cession of Decoux, 5 La. Ann. 140. If a verdict and judgment in a petition for freedom are in favor of the defendant, he cannot sustain an appeal, though he has taken an exception, because he is not aggrieved by the result of the trial below. Ringgold V. Barley, 5 Md. 186. A prisoner is not legally aggrieved by an order that he be discharged and go without day ; he therefore cannot appeal therefrom. Commonwealth v. Graves, 112 Mass. 282. AGIO. A commercial term used to ex- press the difference in value between bank- notes, or other paper currency, and the coin of the coimtry. M'Cuttoch's Coram. Diet. AGIST. Anciently, to take in and feed the cattle of strangers in the king's forest, and to gather up the money due for the same; which was done by officers appointed for the purpose, called agisters, or gist-takers. AGISTMENT V 48 AGREE AGISTMENT. A species of bail- ment; being a contract whereby a land- owner receives the animals of another to be fed and cared for upon his premises. Agister: the bailee in agistment. Agistment also signifies the profit of feeding another's cattle in one's ground or field. There is also agistment of seabanks, where lands are charged with a tribute to keep out the sea; and terrm agisiatcE are lands whose owners must keep up the seabanks. Hulthouse. AGNATES; AGNATI. Relatives whose relationship can be traced exclu- sively through males. The agnati were those relatives of a person not sui hceredes, and who con- nected themselves with him by a male relationship. They ranked next after the sui hafedes and next before the cognati. AGNOMEN. The Romans recog- nized four names of persons, — the agnomen being a name derived from some achievement, personal peculiarity, or circumstance particularly associated witn the individual. AGRARIAN. Relating to land. Agrarian laws, in common parlance, are laws tending to an equal distribution of landed estates ; laws for subdividing large properties and increasing the number of landholders. AGREE. 1. In the most general sense, to unite in mental action; to ex- change assents ; to concur in opinion or purpose. Agreed is applied to persons who are thus united in purpose ,or opin- ion. In this sense, while the term does not imply any exchange of promises, it does import a conference or exchange of views ; persons are not said to agree because they think alike merely, but because they consciously concur in each other's thought. Thus we say that the jury agreed upon a verdict; that five judges agreed and two dissented: mean- ing that they decided alike, upon confer- ence. But the electors who have voted for the successful candidate, though they have chosen alike, are not properly said to agree, if the vote of each was his sep- arate act ; to say that they agreed upon the man elected would seem to import some caucus or previous conference by which their votes were determined. 2. When the context or connection shows that the word is used with refer- ence to any mutual dealings or arrange- ments for determining the future action of the parties, agree means, properly, to exchange promises; to unite in an en- gagement that something shall be done or omitted : and agreement means a meeting or concurrence of minds upon a course to be taken ; a concord estab- lished by reciprocal promises or by com- pen sating a promise. Also , secondarily , agreement designates the language, oral or written, embodying mutual promises. In this lise of the words they are nearly equivalent to the verb and noun contract: the differences beiug that contract un- questionably involves the ideas of a sub- ject-matter of value and an exchange of promises or considerations in compensa- tion for each other; which implications are less distinct in agree. Whether agi-ee imports a consideration is disputed: the true view seems to be that it properly imports more than promise, followed by assent; implies reciprocal promises, though not necessarily promises which would form a legal consideration ; yet as / there is no distinct term for the relation established by the bare acceptance of a promise, agreement is sometimes loosely ■-' used for that. Or we may say that offer ' and promise, on the one hand, and assent on the other, are unilateral, importing _,. action of a single mind; agree means an exchange of promises, which may or may not involve value or compensation ; while , contract implies mutual engagements involving value or founded upon consid- eration. To say that a congressman contracted to vote for a subsidy would clearly impute bribery ; that he promised his vote in exchange for something of value promised to him. To say that he agreed to vote for it would not negative bribery, but, on the other hand, would not imply it; the words would be per- fectly satisfied if there was a conference of representatives and an exchange of assurances that they would vote for the bill, in the honest exercise of duty. To say that he promised his vote would im- port only that he declared an intention of voting for the bill, to some one inter- ested in its passage. A verdict in a criminal case, stating age.ee 49 AID that the jury "agree" instead of "find," is sufficient. Benedict i/. State, 14 Wis. 423. Agree, in an inirtrument signed by one party only,but delivered to and accepted and acted upon by another, imports reciprocity; implies a counter-promise by the other to perform what appears by the terms of the instrument to be the condition on which the signer's promise is founded. Baldwin v. Humphrey, 44 N. Y. 609. The words, I agree to sell, &c., in a contract for the sale of land, import a con- cluded agreement, and not a mere offer to sell. Ives V. Hazard, 4 R. I. 14. That agreement may import a mutual act of two parties, but is frequently used as declaring the engagement of one only; a man may agree to pay money, or to perform some other act; and the word is then used synonymously with promise or engage, see Packard v. Richardson, 17 Mass. 122. Agreement, in its popular and usual sig- nification, means no more than concord; the union of two minds or a concurrence of views or intention. The cause or occasion which produces it is a distinct thing. The concord or union of minds may be lawful or unlawful ; with consideration or without ; creating an obligation or without : still it is an agreement. Any thing done or omitted by the compact of two or more minds is universally called an agreement. Whether a consideration exists is a distinct idea, and enters not into the popular meaning of the term. Agreement is synonymous with mu- tual assent. A statute (of frauds) requiring a memorandum of an agreement ought not to be construed, in the absence of something beyond the employment of that word, as requiring the consideration to be stated. Sage V. Wilcox, 6 Conn. 81. Agree no more implies a consideration than the word promise. N ewcomb v. Clark, 1 Den. 226. Agreement is more comprehensive than promise ; signifies a mutual contract, on consideration, between two or more parties. A statute (of frauds) which requires the agreement to be in writing includes the consideration. Wain v. Walters, 5 East, 10. But a statute which requires the promise to be in writing is satisfied without a state- ment of the consideration. Kigby v. Nor- wood, 34 Ala. 129. Agreement is not synonymous with promise or undertaking, but, in its more proper and correct sense, signifies a mutual contract, on consideration, between two or more parties, and implies a consideration. Andrews o. Pontue, 24 Wend. 285. Agreement, as used in a statute declaring void parol agreements not to be completed in one year, signifies a mutual contract, on consideration, between two or more persons ; and, ex vi termini, includes the several parties, and their respective stipulations, — every thing, indeed, which is to be done on both sides. Broadwell w, Getman, 2 Den. 87. Agreement is constantly used as the you I. i synonyme of contract. There seems, howr ever, to be a shade of difference between the terms, agreement being applicable to less formal acts or instruments. Burrill. Agreement is seldom applied to special- ties ; contract is generally confined to simple contracts ; and promise refers to the engage- ment of a party without reference to the reasons or considerations for it, or the duties of other parties. Parsons, Contr. 6. A statute limiting an action upon " a specialty, or any Agreement, contract, or promise in writing," does not embrace a judgment. Kimball v. Whitney, 15 Ind. 280. It is agreed, contained in an agreement signed by two persons, implies a mutual agreement binding upon both ; thus, where " it is agreed " that A shall furnish articles at a certain price to B, there is an implied agreement that B will accept them and pay the price. Barton v. McLean, 5 Hill, 256. AGRICULTURE, does not apply to the cultivation of a one-acre garden of or- dinary vegetables by a man whose chief avocations are those of a butcher and day- laborer ; this is " horticulture." Simons ». Lovell, 7 Beisk. 510. It does not include labor in a grist-mill. Bachelder v. Bickford, 62 Me. 526. AID, V. To assist; help; promote. Differs from encourage and advise, in importing some active co-operation ; and from abet, in not importing (when used alone) any criminality in the act aided. Aid, n. : a person (sometimes a thing) who promotes, helps, or assists in something done. Aider by verdict. Defects or omis- sions in a declaration or indictment are said to be aided by verdict, upon the principle that an appellate court will presume^ in support of the verdict, that facts, without evidence of which the ver- dict could not have been found, were duly proved, although the averment of them is obscure, indistinct, or might have been held insufficient upon a de- murrer. When it may be reasonably presumed — that is, presumed consistently with the gen- eral tenor of the pleadings — that the defect was supplied or taken into consideration by the jury previously to giving their verdict, in such cases the error, defect, or omission cannot be made a ground of objection, and is thence said to be cured by the verdict. Brown. Where there is any defect, imperfection, or omission in any pleadings, whether in substance or form, which would have been a fatal objection upon demurrer, yet it the issue joined be such as necessarily required on the trial proof of the facts so defectively ALCALDE 50 ALIAS or imperfectly stated or omitted, and with- out wtiich it is not to be presumed that either the judge would direct the jury to giye, or the jury would have given, the verdict, such defect, imperfection, or omis- sion is cured by the verdict. Serj. Wil- liams, in note to Stennel v. Hogg, 1 Saund. ed. 1845, 228, note. Aiding and abetting; Aiders and abettors. Phrases designating the guilt of persons who assist; help, or promote the commission of a crime, of which an- other person is the principal perpetrator. Compare Accessoky; Abet. Aid prayer. A proceeding by which a person, sued in respect of land in which he had but a limited interest, besought the aid of a lord or reversioner, or other person having a further or more permanent inter- est in the land, to defend the same^ Aid of the king might also be sought by a person sued in respect of land held of the king. Termes de la Ley. Aids, in old English law, were origi- nally mere benevolences granted by a ten- ant to his lord, in times of distress, hut at length the lords treated them as a matter of right, and not of discretion. They were principally three : To ransom the lord's per- son, if taken prisoner ; to make the lord's eldest son and heir-apparent a knight ; to give a suitable portion to the lord's eldest daughter on her marriage. Also extraordinary grants to the crown by the house of commons, and which were the origin of the modern system of taxa- tion. WhaHon. ALCALDE (sometimes spelled Al- cad6 and Alcaid), a juridical officer, known in Spain and in those parts of America which were settled under Spanish authority and adopted Spanish institutions. His functions somewhat resembled those of mayor in small municipalities on the continent, or jus- tice of the peace in England and most of the United States ; yet juaces de paz or justices of the peace, seem to have been known as a distinct class of officers, and there were alcaldes ordinarios besides the grade of alcalde mayor. See Strother V. Lucas, 12 Pet. 442, note a; United States V. Castillero, 2 Blach. 194. The importance of the title to American lawyers has lain in this, that in tracitig back the early history of titles to lands in territory acquired from Spain, one often came upon deeds and muniments of title authenticated by or before an alcalde; and sometimes a careful exami- nation of his official powers at the period of his act became necessary. These titles have now very generally become established by authoritative de- cisions of the federal judiciary, render- ing any renewal of such examinations of diminished importance. An alcalde had no jurisdiction under the mining laws (of Spain governing Cali- fornia), and could not make title to a mine. Under the Spanish laws, most of the im- portant functions of the local government of California were performed by the gov- ernor and the departmental assembly ; but the law also made provision for prefects and subprefects ; for ayuntamientos or mu- nicipal councils ; and for the appointment of alcaldes and juaces de paz or justices of the peace. Judicial functions were exer- cised by the alcaldes ; but it does not ap- pear that their authority extended to the adjudication of a mining title. United States V. Castillero, 2 Black. 17, 194. ALDERMAN. An officer of dignity in a municipal corporation. The powers and duties of aldermen vary under dif- fering local laws ; but in modern usage the legislative power granted to a city is vested in the aldermen as a board, or is shared by them as one of two boards composing the legislative body;, while the aldermen individually exercise some functions, more or less extensive in dif- ferent municipalities, as magistrates and administrative officers. Alderman has been long used to desig- nate an officer having judicial, as well as o^vil or legislative, power. Purdy v. People, 4 HiU, 384, 387, 409. ALEATORY. Contracts, the obliga- tions and performance of which depend upon an uncertain event, such as insur- ance, engagements to pay annuities, and the like, are termed, in the civil law, aleatory. In aleatory contracts, of whose essence it is that there should be risk on one side or on both, all risks appertaining to the con- tract, and not excepted, are assumed by the parties. Moore v. Johnston, 8 La. Ann. 488. ALIAS. 1. Otherwise; also (in ab- breviation of alias dictus), otherwise called. 2. At another time ; on another occa- sion; before. • An alias execution is another and differ- ent execution actually issued at a different time, and does not include an execution al- tered by change of date. Roberts ». Church, 17 Conn. 142. Alias has become incorporated into the English language, as equivalent to " other- wise called ; " and the use of it alone, with- out the addition of dictas, in an indictment ALIBI 51 ALIEN does not create uncertainty. Kennedy v. People, 39 JV. Y. 245. Alias dictusi. Otherwise called. Used to denote a second or further name of a person known by two or more different names; commonly ab- breviated to alias. Thus the full form of the common expression John Doe, alias Goodright, is John Doe, alias dic- tus (otherwise called) Goodright. ALIBI. Elsewhere; in another place. This term is used to designate that mode of defence to a criminal prosecution where the accused, to prove that he can- not have committed the crime with which he is charged, oifers evidence that he was in another place at the time when, as alleged, the act was done. When established beyond question this is a very convincing and satisfac- tory defence. It is, however, proverbi- ally open to suspicion, because it offers opportunity and temptation for the em- ployment of false witnesses ; and because it may often mislead, through a mistake of honest witnesses as to the precise day and hour of the facts to which they swear. Exactness as to time of ordi- nary events is not generally observed by persons noticing the event, but perhaps not aware of the importance which it is to assume in some future judicial in- quiry. Hence witnesses may easily be mistaken as to time. Yet, when an alibi is set up, if either the witnesses for the prosecution are in any error in recollecting the time of the offence, or those for the defence make any mistake as to the day or hour when they saw the prisoner elsewhere, both may intend to testify truthfully, yet the defence, though apparently good, may be unfounded. ALIEN, n. Generally, one born abroad, or who does not, either by na- tivity or voluntary adoption, owe alle- giance to the government within whose territory he dwells. Alienage, alienism : the status or legal condition of an alien. By our law, those persons who were born out of -the iurisdiction of the United States, and who have not been natural- ized, are aliens; except that children of ambassadors and foreign ministers, and in some cases wives of naturalized men, though born abroad, are citizens; and that alienage has been imputed to chil- dren born in 'this country before its sep- aration from England, but of parents who withdrew, with such children, on the treaty of peace ; and that conversely citizenship has been accorded to persons born within territory while it was under dominion of a foreign power which has since become or been annexed to the United States, without requiring from them any distinct individual act of nat- uralization. See Antenatus. An alien is one born without the alle- giance of the commonwealth. Ainslie v. Martin, 9 Mass. 456. See also Lynch v. Clarke, 1 Sandf. Ch. 58.3, 668; Ex parte Dawson, 3 Bradf. 130, 136. J^T^.S^^. Alien, as need in 2 N. Y. Eer. St#. 69, § 31, excluding certain aliens from being ex- ecutors, means one born out of the jurisdic- tion of the United States, and who has not been naturalized. McGregor v. McGregor, 3 Abh. App. Dec. 92 ; 33 How. Pr. 456. With respect to the change of allegiance caused by the revolution, one born in and a subject of Great Britain before the revo- lution, and who always resided there, and never was in the United States, is an alien, and therefore cannot take lands in the United States by descent from a citizen of the United States. Dawson v. Godfrey, 4 Cranch, 321 ; s. p. Fairfax v. Hunter, 7 Zd. 603 ; Blight v. Rochester, 7 Wheat. 535; Contee v. Godfrey, 1 Cranch C. Ct. 479. Any subject of Great Britain who has emigrated to this country since the declara- tion of independence is an alien. Jackson V. Wright, 4 Johns. 75. With respect to the acquisition of Texas, one who removed from Texas to Mexico during the revolution, and before the dec- laration of Texan independence, and re- mained in Mexico, is an alien, and cannot inherit in Texas. McKinney v. Saviego, 18 How. 235. Where a person born in Texas, when it was a part of the republic of Mexico, the place of birth being also the domicile of her father and mother until their deaths, was removed to Mexico at the age of four years, before the declaration of Texan indepen- dence, and there remained, it was held that she was an alien, and could sue in the courts of the United States. Jones v. McMasters, 20 How. 8. Alien enemy. One who owes allegi- ance to a government at war with ours; usually spoken of a person dwelling within our territory or seeking some action from our government or courts. Alieu friend. A subject of a nation which is at peace with us. Alien and seditiou lavra. Acts of congress of July 6 and July 14, 1788. See Whart. St. Trials, 22. ALIEN 52 ALIMONY ALIEN, v.; ALIENATE. To part with ; put away ; transfer. Alienation : a putting away or divesting one's self of something. When used of property, these words embrace all the voluntary acts or modes by which an owner devests his title or diverts the property from the ownership and course of descent which the law would otherwise impute. Alienation is as much as to say : to make a thing another man's ; to alter or put the possession of lands or other things from one man to another. Termes de la Ley. To alienate means voluntarily to part with ownership. The right to alienate was a right which the owner of real estate had to divert it from the heir. Alienation dif- fers from descent, in this, that it is effected by the voluntary act of the owner of the property, while descent is the legal conse- quence of the decease of the owner. A transfer by conveyance or devise is an alienation ; but property which is not trans- ferred or devised is not alienated. By the death of the assured, the insured property is not alienated. Burbank v. Bockingham Mut. Fire Ins. Co., 24 N. H. 550. Alienation imports a transfer of the entire title ; a transfer short of the con- veyance of the title, is not an alienation. Masters v. Madison County Mut. Ins. Co., 11 Barb. 624. A deed to a naked trustee, in trust for grantor's wife and children, is not an alien- ation of a homestead, requiring the wife's signature ; for the trust expressed in such deed being a passive one, the grantee takes no title, but the estate vests immediately in the cestuis que trust, each taking the title to an undivided share. Riehl v. Bingenheimer, 28 Wis.Si. A mortgage of property insured is not of itself an alienation, within a provision of the charter or policy, avoiding the contract if the property shall be alienated during the risk ; according to the weight of authority. Pollard V. Somerset Mut. Fire Ins. Co.,42 Me. 221; Smith v. Monmouth, &c.Ins. Co., 50 Id. 96; Rice v. Tower, 1 Gray, 426; Rollins v. Columbian Ins. Co., 25 N. H. 200 ; Folsom V. Belknap County Mut. Fire Ins. Co., 30 Id. 231 ; Shepherd v. Union, &c. Ins. Co., 38 Id. 232; Conover v. Mutual Ins. Co., 3 Den. 254, 1 N. Y. 290; Allen v. Hudson River, &c. Ins. Co., 19 Barb. 442. Compare, to the contrary, Edmands v. Mutual, &c. Ins. Co., 1 Allen, 311 ; Edes v. Hamilton, &c. Ins. Co., 8 Id. 362; Phillips v. Behn, 19 Ga. 298. A mortgage followed by a transfer of the right of redemption, 'Tomlinson v. Mon- mouth, &c. Ins. Co., 47 Me. 232, or by a sale in foreclosure. Mount Vernon, &c. Co. v. Sun)mit, &c. Ins. Co., 10 Ohio St. 347, is an alienation. A statutory prohibition upon alienations of real property by married women should be held to include mortgaging. Vinnedge V. Shaffer, 35 Ind. 341. Alienation, in a clause in a policy restrict- ing alienation of the subject insured, extends to alienations in law ; to any transfer which vests the property, and the charge and con- trol of it, in another person, even though the change is only temporary. Lane v. Mauie Mut. Fire Ins. Co., 12 Me. 44. ALIENI JURIS. Under another's authority. 1. In the Roman law. A person sub- ject to the paternal authority vested by the law in the pater-familias, termed patria potestas (q. v.) ; as distinguished from those not subject to such authority, known as sui juries. 2. In modern law. A person subject to the authority or power of another, as an infant is subject to the authority of his parent or guardian, or a wife to the control of her husband, is said to be alieni juris ; and such persons are thus distinguished from those capable to act in their own right, who are said to be sui juris, q. v. This phrase should not be con- founded with mental alienation, or be supposed to embrace persons who are incapacitated to act in their own affairs by weakness of mind. If a lunatic is termed alieni juris, it is in virtue of his having been placed in the care of a committee or guardian, and not from the alienation of mind merely. ALIMENT, n. Originally food; hence, also, necessaries of life, generally, or even money allowed for procuring them. Aliment, v., is sometimes used in the sense of to supply necessaries. ALIMONY. A provision for support which a husband may be adjudged to make to his wife, when she seeks a ju- dicial separation or divorce. It is temporary, otherwise called alimony pendente lite, when it is ordered, at the institution of a suit, to prosecute or de- fend the suit, and to buy necessaries meantime; it is called permanent, when it is made, upon granting a divorce, for the wife's future maintenance. Alimony is an allowance out of a hus- band's estate, made for the support of a wife while living apart from her husband. Chase v. Chase, 55 Me. 21 ; Odom v. Odom, 36 Ga. 286. Alimony, as used in the constitution and statute of New Hampshire; means that pro- vision or allowance which is made to a wife ALITER 63 ALL on a divorce from the bonds of matrimony, and does not embrace otlier allowances. Parsons v. Parsons, 9 N. H. 309 ; Slieafe v. Sheafe, 24 Id. 564. Alimony includes all allowances, whether annual or in gross, made to a wife upon a decree of divorce. Burrows v. Purple, 107 Mass. 428. The phrase " alimony and maintenance," as used in Nix. Dig. 247, § 9, regarding divorces, does not comprise, in its legiti- mate signification, an allowance of a por- tion of the husband's estate in fee. Calame V. Calame, 25 N. J. Eq. 548. Aliter. Otherwise. Used in the re- ports to introduce a converse proposition or an exception to a general principle previously stated. Aliud est cel^re, aliud tacere. It is one thing to conceal, another to be silent. Silence is not concealment. A familiar application of this principle is in the negotiation of a contract of sale, in -which either party may innocently keep silence as to matters open to both to exercise their j udgment upon. Broom Max. 782. The seller is not legally bound to proclaim the defects of the subject offered for sale ; he may remain silent and allow the buyer to .inspect the article and satisfy himself, before con- cluding the transaction, whether it is defective or not. Silence, under such circumstances, does not amount to con- cealment of any defects, nor is there any warranty implied against defects. Keates v. Earl of Cadogan, 10 Com. B. 591. To such transactions the maxim caveat emptor (q. v.) is applied. But the non-disclosure of facts which ought to be disclosed is such concealment as wiU vitiate a contract or obligation entered into or obtained by such means. Aliud est possidere, aliud esse in possessione. It is one thing to pos- sess, another to be in possession. Al- though no distinction is made in the common usage, between the terms "to possess" and "to be in possession," their use in legal phraseology involves an important distinction. To possess, implies right of property ; to be in pos- session, may mean mere custody. Thus, the proprietor of demised premises pos- sesses the land of which his tenant is in possession ; the lender possesses the ar- ticle loaned, of which the borrower is in possession ; the owner of a lost or stolen article still possesses it when it is in the possession of a finder, or of an honest purchaser for value. Trayn. Max. 37. Aliunde. From another source. This term designates evidence derived from extrinsic sources. Thus where a party seeks to contradict, explain, or vary the terms of an instrument in writing by proof of facts extrinsic to the instru- ment, such proof is termed evidence ali- unde. An instance is when evidence aliunde (from without the will) is re- ceived to explain an ambiguity in a wiU. ALL. Is frequently and carelessly used in all writings, lay as well as legal ; and the^ ,y generality of the phrase is frequently to be'^'^ restrained in a statute, not only by the con-,;,^^^ text, but by the general form and scheme ,■ ,, of the act, as demonstrative of the inten-^ '^' tion of the legislature. Phillips v. Saun.^Jtvt/ ders, 15 Ga. 618. In statutes, as in common parlance, all is a general rather than a universal term, and is to be understood in one sense or the other, according to the demands of sound reason. Kieffer v. Ehler, 18 Pa. St. 388 ; Stone V. Elliott, 11 Ohio St. 252. All is not always to be construed liter- ally ; as, in a statute declaring a lien, in favor of "all laborers who shall perform" certain work. Dano v. M. 0. & R. E., B. E. Co., 27 Ark. 564. AH estate ; all interest ; all property. A devise of " all my real estate," without words of limitation or inheritance, passes a fee-simple. Godfrey v. Humphrey, 18 Pick. 537 ; Morrison n. Semple, 6 Binn. 94 ; Carr V. Jeannerett, 2 McCord, 66. 'By a devise of " all my other estate, real and personal, not otherwise disposed of," a fee passes. Countess of Bridgewater v. Duke of Bolton, 6 Mod. 106. The words, " all my estate, both real and personal," " to be at her absolute disposal," are suifieient to vest a fee. Jackson v. Bab- cock, 12 Johns. 389. A deed of " all the estate, both real and personal," to which the grantor is " entitled in law or equity, in possession, remainder, or reversion," passes all the grantor's estate. Mundy v. Vawter, 3 Gratt. 518. In a will, the words all my estate will pass every thing a man has ; but if the word all is coupled with the word personal, or with words of local description, then the gift will pass only personalty, or the spe- cific estate particularly described. Hogan V. Jackson, 6 Cowp. 299. The words in a will, " I give, devise, and bequeath all my estate and effects," i£ not restricted by the context, pass all the real estate, including after-acquired real estate, of which the testator dies seised. Stokes v. Salomons, 4 Eng. L. If Eq. 133. The assignment of " all the interest " of a member of a special partnership to buy lands does not pass any collateral benefit ALL 54 ALLEGANS which he derived as agent of the partner- ship, such as his expenses and costs in se- curing the land bought, to the partnership. Stewart v. Stebbins, 30 Miss. 66. A devise of " all my property," certain described portions excepted, is a general devise, and so is a devise of " all the rest of my books" (certain specified books having been previously devised). Mayo v. Bland, 4 Md. CI. 484. A devise of "all my property of any nature or kind whatsoever, which deed, papers, and movables will show," will not pass land which belonged to the testator's wife. Mitchell v. Mitchell, 1 Ired. L. 267. Under a bequest of " all my property of every description," money, choses in action, and every tlfing of which the testator has a right to dispose, passes to the legatee. Hurdle v. Outlaw, 2 Jones Eg. 75. A conveyance of " all the property I pos- sess," held, to mean all that the party owned, as well in remainder as in immedi- ate occupation. Brantly v. Kee, 5 Jones Eq. 332. All I possess ; or am 'worth. " I give and bequeath all that I possess in-doors and out-doors," is sufficient to pass real estate. Tolar V. Tolar, 3 Haivhs, 74. A gift in a will of " all I am possessed of," will pass all the interest in personal estate which the testator may have, not at the time of making the will, but at the time of his death, if not inconsistent with other parts of the will. Wilde v. Holtzmeyer, 5 Fes. Jr. 811. A testamentary gift of " all I am worth " Includes the real as well as the personal es- tate of the testator. Huxstep ;;. Brooman, 1 Broim Ch. 437. All faults. In the absence of fraud, a sale of goods with " all faults " covers all such faults and defects as are not inconsis- tent with the identity of the goods as the goods described. Whitney v. Boardman, 118- Mass. 242. All legal costs, in a suit, clearly in- cludes charges for travel and attendance, and other items that inure to the benefit of the attorney, as well as clerk's, officer's, and witnesses' fees. James v. Bligh, 11 Allen,i. All matters in dispute, occurring in a submission, includes costs; and the court has no power, in the absence of any stipu- lation therefor, to amend the award in that regard. Hoover v. Neighbors, 64 N. C. 429. AU personal effects. A deed of trust, specifying certain personal property, and concluding with a grant of "all personal effects of every name, nature, and descrip- tion," embraces only things ejusdem generis with those already mentioned which might not have been supposed to pass under the words used. Bellamy v. Bellamy, 6 Fla. 62. All sorts. The phrase "all sorts of wool" includes only animal wool, where used in a statute which in another clause mentions wool and cotton-wool as distinct commodities. Pearce v. Cowie, 1 Holt N. P. ALL-FOURS. Two cases or deci- sions are said to " run upon all-fours " — a metaphor taken from the running of mated quadi-upeds — when they are alike in all the circumstances which can at all aflect the proper determination of them. ALLAY. See Alloy. AUegans contraria non est andi- endus. He who alleges things contra- dictory of each other is not to be heard. Contradictory allegations in pleading are not permitted. Thus, one main- taining that a deed is valid, which con- fers upon him some right, cannot at the same time allege its invalidity, in order to escape an obligation imposed upon him by the same deed. So a person cannot claim to act under an agreement, and at the same time repudiate it. Crossley v. Dixon, 10 H. of L. Cas. 293, 310. But the maxim does not forbid fair alternative pleading; as where, in an action for damages, the defendant denies that the plaintifE has sustained any injury whatever, he may also allege that, even if the plaintiff has sustained injury, the damage was occasioned by the plaintiff's own act or negligence. Such allegations are not considered con- tradictory of each other. The principle by which an assertion of a right or matter of fact, whether by record, deed, or by mere act or omis- sion, may operate to prohibit a subse- quent contradictory assertion, forming part of the doctrine of estoppel, is with- in the meaning of this maxim . Broom Max. 169. The rule is also applied to a witness making contradictory statements rela- tive to the same transactions, in deter- mining the degree of credibility to which he may be entitled. Broom Max. 174. Allegans suam turpitudinem non est audiendus. He who alleges his own infamy is not to be heard. No one is permitted to allege discreditable con- duct of his own, in order to escape the fulfilment of some obligation which otherwise is binding upon him. This maxim is to be understood in a very limited sense. As a general rule, a person who alleges or confesses some- thing to his own discredit is heard, and ALLEGATA 55 ALLEGIANCE liis statement is accepted, on the ground that one does not readily acknowledge what, is discreditable to himself. But this reason does not apply to a person seeking to take advantage of his own fraud, or other wrongful or disgraceful act, and such cases are within the mean- ing of the maxim. But even within these limits there are exceptions. An action upon an express promise for the payment of money may be defended by setting up that the consideration of the promise was the payment of a gambling debt, or the price of illicit intercourse. Although such defences involve allega- tions of conduct discreditable to the per- son making them, they are nevertheless heard, and, if proved, may be sustained as sufficient defences. The maxim is also applied in deter- mining the degree of credibility to which a witness is entitled who testifies to his own participation in the offence sought to be proved by him; as an ac- complice in crime, or a paramour in adultery. So an arbitrator is not al- lowed, as a witness, to impeach his own award and his own integrity by contra- dicting his report as to matters of fact therein stated, and avowing that he acted with bad faith and duplicity. Underhill v. Van Cordtlandt, 2 Johns. Ch. 339, 350. On like grounds, as well as from considerations of public policy, a juror is not received as a wit- ness to impeach his verdict by alleging his own misconduct. Allegata et probata. Allegations and proofs. A phrase frequently used in expressing the rule that the evidence must correspond to the allegations of the pleadings in a cause. A party is not allowed to state one case in his pleadings, and make out a different case by proof: the allegata and probata must agree ; the latter must support the former. Boone v. Chiles, 10 Pet. 177, 209. If there be proofs to facts not put in contestation by the pleadings, or allegations of facts not established by proofs, in each case they must be re- jected. The Sarah Ann, 2 Sumn. 206. ALLEGATION. That which is as- serted or declared. It is most fre- quently used of the formal averments in the pleadings in a suit, setting forth what the party is prepared to prove, characterizing not the entire pleading, but the separate statements contained in it, considered distinctly. In English ecclesiastical practice, however, the word seems to designate the pleading as a whole: the three pleadings are known as the allegations ; and the defendant's plea is distinguished as the defensive, or sometimes the responsive allegation, and the complainant's reply as the re- joining allegation. Allegation of faculties. A state- ment of pecuniary means ; particularly the statement of a husband's means, required in ecclesiastical practice, from a wife, as a basis of an application for alimony. ALLEGIANCE. The obligation of a citizen or subject to render obedi- ence and support to his government or sovereign, in return for the protection which he receives. This obligation was, upon the older ideas, inalienable and perpetual: it could not be divested by any act of the subject; but this view has been, in mod- ern times, and in deference to necessities arising out of the extensive emigration and colonization of the past two centu- ries, relaxed, so far, at least, that both English and American laws recognize the liberty of a subject to exchange one allegiance for another, by naturaliza- tion. See the English naturalization act of 1870, Stat. 33 Vict. ch. 14; act of congress of July 27, 1868, 15 Stat, at L. 228, Ree. Stat. 1999. The older learning on allegiance wiU be found in Calvin's Case, 7 Rep. 1, and in the notes to that case in Broom's Const. Law. It is there said that alle- giance is of four kinds, namely, nat- ural allegiance, that which arises by nature and birth; acquired allegiance, that arising through some circumstance or act other than birth, e. g., by deniza- tion or naturalization; local allegiance, that arising from residence simply with- in the country, for however short a time ; and legal allegiance, that arising from the oath of allegiance. Allegiance is the obligation of fldelitj and obedience which the individual owes to the government under which he lives, or to his sovereign, in return for the protec- tion he receives. It may be an absolute and permanent obligation, or it may be ALLOCATIO 56 ALLOW qualifiefl and temporary. Carlisle v. United States, 16 WaU. 147. ALLOCATIO. ALLOCATION. An allowance ; pavticulai-ly, one made upon account in the English exchequer. Allocatione facienda. A writ for al- lowing to an accountant such sums of money as he hath lawfully expended in his office ; directed to the lord treasurer and barons of the exchequer upon application made. (Reg. Orig. 206.) Jacob. ALLOCATUR. It is allowed. This Latin word was formerly affixed to or indorsed upon a writ or order, with the judge's signature or initials, to denote that he approved and authorized the in- strument. "Allowed," in modern prac- tice, takSs its place; or the name or ini- tials of the judge may show an allowance. After an attorney's bill has been exam- ined or taxed by one of the masters, and the items which he disallows have been deduct- ed, the remaining sum certified by the master to be the proper amount to be allowed, is termed the allocatur. Brown. ALLODIAL. Free; owned without obligation of fealty or vassalage; not feudal. Allodium ; an estate held inde- pendent of feudal obligations; owned by a man in his own right, without ow- ing service to a superior. Allodial is where an inheritance is held without any acknowledgment to any lord or superior, and therefore is of another na- ture from that which is feudal. Allodial lands are free lands which a man enjoys without paying any fine, rent, or service to any other. Jacob. Allodial land is land not held of any lord or superior, in which, therefore, the tenant has an absolute property and not an estate merely. The lands of the Saxons were allod, but under the oath taken at Salis- bury in 1087, all the lands in England be- came feudal, !. «., held of some superior lord, and for an estate only. Broum. Allodial is used in contradistinction from feudal; in which sense all movable prop- erty is allodial. In a more limited sense the term is applied : 1. To the property belong- ing to the crown"; 2. To the superiorities reserved by the sovereign ; 3. To churches, churchyards, manses, and glebes, the right of which does not flow from the crown. Bell. The terms alod and alodial did not have any necessary reference to the mode in which the ownership of land had been conferred; each simply implied that the lands were held in absolute ownersliip, and not in dependence upon any other body or person in whom the proprietary rights were supposed to reside, or to whom the posses- sor of the land was bound to render ser- vice. Diybji, Hist, of Law of Real P. 5. Calling lands allodial meant that they were held in absolute ownership, without recognizing any superior to whom any duty was due on account thereof. Such lands were alienable at the will of the own- er, and were liable for his debts ; and de- scended, on his death (if undevised), to his heirs. Allodial lands, or, as they were called in Saxon, boc lands', might be grant- ed upon such terms and conditions as the owner saw fit, by a greater or less es- tate, present or future. 1 Washb. Real P. 16. Allodial, as used in Wis. Const, art. 1, § 14, means free; not subject to the burdens and restrictions on alienation connected with feudal tenures. The section does not pro- hibit the legislature from regulating con- veyances, or dower, or other rights grow- ing out of the domestic relations. Barker ». Dayton, 28 Wis. 367. ALLONGE. When the back of a bill of exchange becomes absolutely filled with indorsements, so that no room remains for more, the law-mer- chant allows additional indorsements to be made upon a slip of paper, to be an- nexed to the bill. This slip is called an allonge. There is no authority against such a mode of indorsement, and no principle is violated by holding it to be a legal transfer. Folger y. Chase, 18 Pick. 63. ALLOT. To set apart specific prop- erty, a share of a fund, &c., to a distinct party. Allottee : a person to whom something has been allotted. Allot- ment: the act of setting apart property to one, as his share. Thus, if more shares in a corporation are subscribed than by the charter may be issued, an allotment becomes necessary, apportion- ing the allowable number among the subscribers. See Allow. Allotment note. A writing by a sea- man, whereby he makes an assignment of part of his wages in favor of his wife, father or mother, grandfather or grand- mother, brother or sister. Every allotment note must be in a form sanctioned by the board of trade. The allottee, that is, the person in whose favor it is made, may re- cover the amount in the county court. (Stat. 17 Sr 18 Vict. ch. 104, §§ 168, 169.) Modey Sf W. Allotment system. Designates the practice of dividing land in small portions for cultivation by agricultural laborers and other cottagers at their leisure, and after they have performed their ordinary day's work. Wharton. ALLOW. To permit, consent to, or approve; as 'to allow an appeal or a ALLOY 57 ALONG marriage; to allow an account. Also, to give a fit portion out of a larger prop- erty or fund; as to allow a wife ali- mony. Allowance : the act of permit- ting or giving; also, a share or portion given. Allow usually means to substitute some- thing by way of compensation for another thing, while allot is a proper term for a direction to set apart a portion of specific property. A statute regulating dower, which directs that the widow shall be " allowed " so much, should be construed as authorizing a payment of the value of her share in money. Glenn v. Glenn, 41 Ala. 571, 586. The words, in a written instrument, I allow to give, were held equivalent to I intend to give. Harmon v. James, 7 Ind. 263. Allowance, as used in the Ala. Kev. Code, § 2361, directing the chancellor to decree the wife an allowance out of the estate of her husband, imports an absolute right, as a provision for her support. Smith v. Smith, 45 Ala. 264. A judgment of forfeiture of pay and allowances imposed on a soldier for deser- tion includes any bounty money due him. United States ». Landers, 92 U. S. 77. ALLOY. Some inferior metal law- fully mingled with gold or silver in coin- ing ; also in manufactures of the precious metals. It is allowed, within limits strictly prescribed, as respects coinage, by law, to render the coin harder, and less depreciable by wear. Also spelled Allay. ALLUVION. A latent, gradual, im- perceptible increase. The term is chiefly used to signify a gradual increase of the shore of a running stream, produced by deposits from the waters. Accretions which are successively formed, and imperceptibly, to a soil situ- ated on the shore of a river are alluvion, and belong to the owner of the soil on the edge of the water. Pulley v. MunicipaUty No. 2, 18 La. 278. Alluvion is the addition made to land by the washing of the sea, a navigable river, or other stream, whenever the increase is so gradual that it cannot be perceived in any one moment of time. Lovingston v. St. Clair County, 64 ///. 56 ; Livingston v. Heerman, 9 Mart. {La.) 656. Alluvion, within the rule that soil formed by alluvion belongs to the adjoining land- owner, is an addition to riparian Land, grad- ually and imperceptibly made by the water to which the land is contiguous. The test as to what is gradual and imperceptible, in the sense of the rule, is, that though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on. Whether it is the effect of natural or artifi- cial causes makes no difference as to the ownership. County of St. Clair v. Loving- ston, 23 Wall. 46; Municipality No. 2 v. Orleans Cotton Fress, 18 La. 122. ALONG. The decisions are somewhat conflicting whether "along," in giv- ing the boundaries in a description of land, is to be taken strictly as importing by the side of, exterior to, contiguous, and as excluding any ownership to the centre of the thing designated, or whether it may be read as consistent with such ownership. The true view seems to be that it designates some monument or visible substantial thing having length, as giving the direction or course of the boundary line ; but is indeterminate as to whether the centre or exterior line is the limit of ownership: that is to be ascertained by the context or by the rules of law applicable to the property involved. Thus, along a small stream, means to the thread of the stream; along a navigable river, means bounded by the bank ; along a town road, means to the centre ; along a street, spoken of streets in a city such as New York, where the fee of the street is presumably in the corporation, means by the edge or side. The cases cannot, however, all be recon- ciled to this definition; the foUovring selections indicate the difiering views which have prevailed: Along means by, on, or over, according to the context. In a deed bounding lands, as extending along the shore, it can only mean on. Church v. Meeker, 34 Conn. 421. Where one sovereign state makes a ces- sion of land to another, bounding the grant by a river, and describing the line not only as commencing on the bank, but also as running up the river and along the bank thereof, the latter words, " along the bank," exclude the intendment that would other- wise prevail, that the line should run along the thread of the stream. The limit, on and along the bank of the river, must be where the bank and the water meet in its bed within the natural channel or passage of the river. The words " along the bank " are the controlling call in interpreting such a cession ; and they exclude the idea that the line is to be traced at the edge of the water, as that may be at one or another time, or at low water, or the lowest low water. The water is not a call in the description of the boundary, though the river is ; but " river " does not mean water alone, but banks, shores, water, and the bed of the river. The bank is the fast land which confines the ALONG 58 ALTERATION water of the river in its channel or bed in its whole width ; that is to be the line. Both bank and beds are to be ascertained by in- spection, and the line lies where the action of the water has permanently marked itself upon the bank, rejecting altogether the attempt to trace the line by either ordinary low water or extreme low water. Howard V. IngersoU, 13 How. 381, 416. The fact that a monument from which a line is to run along a stream stands on the bank does not require that the line shall run on the bank. It fixes the terminus, leaving the law to say whether tlie line along the stream shall follow the bank or the middle, according to whether the tide ebbs and flows or not. Thus a deed de- scribing the boundary as running to a stake standing on or near the bank of a river, above tide, " thence running along the river as it winds and turns," to another stake, conveys the land to the thread of the stream. Luce V. Carley, 24 Wend. 451. Although, in general, a grant described by a boundary " running to " a stream, high- way, party-wall, ditch, &c., and thence along the same, means to and along the middle of the same, a boundary running " to the river, and tlience along the shore of the river," restricts the grant to the margin. It is competent for the grantor to restrict his conveyance so as not to pass the bed of the stream ; and this phraseology imports such a restriction. Child v. Starr, 4 Hill, 369. A boundary line described as running to a post on the north bank of a creek, " thence down the same and along the several mean- ders thereof to the place of beginning," which was also on the north bank, includes the bed of the stream to the centre. Seneca Indians v. Knight, 23 N. Y. 498. A boundary along an inland, unnavigable lake, and the outlet thereof, carries the land under water to the centre ; or at least under the shallow water in front of the bank, and the right to fill in the same. Ledyard v. Ten Eyck, 36 Barb. 102. A deed of a city lot, being part of a parcel of land mapped into lots and streets by the grantor, which conveys the lot, de- scribing it as bounded by a line commencing on the side of the street, and running along the street, conveys the land to the centre of the street. A street, whether in the city or country, given as a boundary, is to be con- sidered as a line, not as a space. Hammond V. McLachlan, 1 Sand/. 323; Herring v. Fisher, Id. 344. Where the stone foundation wall of a brick building projected several inches be- yond the face of the brick wall, it was held that a deed of the premises, bounding them by a line described as running " to the cor- ner thereof, thence easterly along the south side of the brick wall," with a reservation of an easement in the wall for the support of an adjoining building, gave the grantee to the face of the brick wall, not to that of the foundation. Comes o. Minot, 42 Barb. 60. Along its route, in a statute giving a railroad company an insurable interest against fire communicated by its locomo- tives to property along its route, means by the side of, alongside, along the line of, lengthwise of, or near to the chartered limits of the roadway as surveyed and located, and not within, upon, over, or across the route. Grand Trunk B. K. Co. V. Eichardson, 91 U. S. 454. ALTER. To modify; to change in 2 form or details ■without destroying^ identity. Alteration : a modification os^ ' change. Alter is distinguishable from amend, which implies improvement, al- teration for the better: while alter im- ports modification merely, irrespective of whether the thing is improved or depreciated. It is distinguishable from change, which may mean to exchange or substitute ; to put a distinct thing in place of a former one: while alter represents the identity of the subject as preserved. A statutory power to alter a wharf imports a power to extend or diminish it, City of Hannibal v. WincheU, 54 Mo. 172 ; and a like authority to alter streets or roads involves power to change the grade of the street, Waddell v. Mayor, &o. of N. Y., 8 Barb. 95; Fishw. Mayor, &c. of Rochester, 6 Paige, 268; or to discontinue a part of the road which is disused by the alteration. Ponder v. Shannon, 54 Ga. 187; but not to appro- priate the land covered by a street to purposes inconsistent with its use as a street, Lachland v. North Missouri R. R. Co., 31 Mo. 180. Alteration of 'written instruments gives rise to numerous and important questions of construction and evidence; the general rule being that an alteration of the tenor of a written instrument in any material particular, made by one party without the assent of the other, nullifies the instrument, so far at least as claims of the party making the al- teration are concerned. Deeds, simple contracts, negotiable instruments, and wills are, however, subject to different rules in respect to alteration. But it is to be understood that by alteration is meant something done to an instrument by which its tenor or effect is changed. If what is written upon a document does not assume to change its opera- tion, or modify its meaning, and cannot mislead any one as to the effect of the ALTERNATIVE 59 AMBASSADOR original, the word alteration is not ap- propriate. The word alteration, when applied to a contract, imports something by which its meaning is changed. Adding a mere mem- orandum, or erasing one, if no change in the effect of the contract is involved, does not constitute a ma;terial alteration. Oliver V. Haw ley, 5 Neb. 4S9; Palmer v. Sargent, Id. 233. Memoranda upon a plan, that certain persons have desired to purchase one of the lots, and to whom and wlien it was sold, but not varying the courses and distances of the lines of the lots, nor the relative sit- uations of the lots to each other, are not an alteration of the plan ; for they do not im- port any change in the effect of the plan. Morrill v. Otis, 12 N. H. 466. Affixing a lightning-rod to a liouse is not altering it, within a mechanic's lien law al- lowing a lien for alterations. Drew v. Ma- son, 81 III. 498. The effect of alterations in a deed (Pig- ot's Case, 11 Coke, 266), bill of exchange (Master v. Muller, 4 Durnf. Sf E. 320), or promissory note (Warrington v. Early, 12 EUis ^ B. 763), is : (1) if it is material, then whether it is made by a party, or by a stranger, it vitiates the instrument ; but (2) if it is immaterial, then if it is made by a party, it vitiates ; but (3) if it is made by a stranger, it has no such effect. Brown. ALTERNATIVE. A privilege or opportunity of choosing one of two thiijgs or courses. Also, either of two objects oSered to one's choice. Alternative obligations are obliga- tions in which the obligor is bound to do one of two things, and which may be satisfied by performance of either. The general rule is, that where an instru- ment or engagement requires a person to do one act or another, without words importing a preference of either, such person has the right to elect which he will do. Alternative •rorit. A writ which commands the party sued to perform a specified act, or to show cause to the court why he should not do it. The practice under the writ of mandamus is, to issue first a writ commanding the respondent to do the act desired, or show cause, &c. This is called an al- ternative mandamus. If respondent does not act as desired, and shows cause unsuccessfully, then a peremptoiy man- damus, that is, an unqualified com- mand, is issued. Alterum non laedere. Not to injure another. One of the three fundamental maxims, laid down by Justinian as fli-st principles, upon which all rules of law are based. The others are honeste vivere and suum cuique tribuere, q. v. duty exacted of ships for the privilege of riding at anchor in a haven. Cotvel ; Wharton. ANCIENT. Old ; that which has ex- isted from an indefinitely early period, or long enough to acquii-e some rights or privileges accorded in view of long continuance? Ancient demesne, or domain. A species of tenure of lands, in England, whereby all manors belonging to the crown in the days of Edward the Confessor and William the Conqueror were held. The numbers and names of the manors belong- ing to the crown, as of all others belonging to common persons, William the Conqueror caused to be set down in a book called Domesday; and those which appear by that book to have belonged to the crown, ANCIENT 65 ANCIENT and are there denominated terrm regis, are called ancient demesne. Lands in ancient demesne are of a mixed nature, i.e., they partake of the properties both of copyhold and of freehold ; they differ from ordinary copyholds in certain privileges, and from freehold by one peculiar feature of villen- age, viz., that they cannot be conveyed by the usual common-law conveyance, but pass by surrender to the lord or his steward in the manner of copyholds, with the excep- tion that in the surrender the words " to hold at the will of the lord " are not used, but simply the words " to hold according to the custom of the manor." There are three kinds of tenants in an- cient demesne: those whose lands are held freely by grant of the king; those who do not hold at the will of the lord, but yet hold of a manor wliicli is ancient de- mesne, and whose estates pass by surren- der, or deed, and admittance, and who are styled customary freeholders ; those who hold of a manor which is ancient demesne, by copy of court-roll, at the will of the lord, and are styled copyholders of base tenure. (Cowel ; Scriven Copyholds, 425; 1 Cruise Viq. 44.) Brown. Tenants in ancient demesne used to enjoy certain privileges, e.g., that of being im- pleaded in the courts of their own manors only, and of being exempted from serving on the juries of the county; but those privileges have mostly ceased, and provi- sion is made by Stat. 4 & 5 Vict. oh. 35, and the acts amending the same, for the general enfranchisement of ancient demesne lands. lb. Ancient houses. In England, it seems to be understood that after a house has stood for twenty years, it ac- quires a prescriptive right to support from the adjoining soil; and the adjoin- ing land-owner cannot make excava- tions, even in his own land, to the preju- dice of such support. Upon this sub- ject the law is not uniform throughout the United States ; but the general rule is believed to be that each land-owner has a natural implied right to the sup- port of his soil in its natural state, from the adjoining lands, but not for build- ings standing upon it: whether they are of ancient or recent erection makes no difference. Ancient lights, or 'windo'ws. In England, openings in a house for air and light which have been used unob- structed for upwards of twenty years acquire a prescriptive right, and may not afterwards be obstructed, even by buildings erected by an adjoining land- owner upon his own land. Windows VOL. I. thus privileged are technically termed ancient lights. The doctrine of ancient lights has been adopted in a few of the United States; in others, it has been distinctly repudiated; iu others again, it is an open question. But the genei-al current of American jurisprudence is against it, as being a rule of the com- mon law which was not suited to the condition of our colonial ancestors, and which, therefore, cannot be deemed to have been brought hither by them. Ancient 'wall. A wall built to be used, and in fact used, as a party-wall, for more than twenty years, by the ex- press permission and continuous acqui- escence of the owners of the land on which it stands, is ancient. Eno ». Del Vecchio, 4 Duer, 53, 63. Ancient witness. The expression, ancient witness, employed in the pro- vision of the judiciary act of congress of Sept. 24, 1789, authorizing the taking the deposition of a witness who was " ancient or infirm," is believed to be a corruption or misprint of enceinte. The intention, probably, was to allow a depo- sition when the witness was a pregnant woman, or person otherwise physically unable to attend and testify in person. As to the expression, aged witness, see Age. Ancient writings. Inasmuch as great lapse of time must necessarily embarrass or destroy means of making technical proof of the genuineness of a written instrument, it has been found necessary to allow very old deeds, wills, &c., to be read in evidence without formal proof of execution, and upon a presumption of their being genuine, where they are produced from the proper custody, and are corroborated by circumstances of possession naturally accordant with their purport. The term of thirty years is the one assigned as sufficient to give rise to this privilege ; and muniments of title to property, pur- porting to be thirty years old and up- wards, are known as ancient instru- ments, and are received in evidence, wherever the common-law rule prevails unchanged, without requiring prelimi- nary proof, as in case of writings recent in date. But this doctrine is by no means carried so far as to allow any ANCILLARY 66 ANIMAL paper, of whatever character, to be so received. It applies only where the nature of the instrument and the at- tendant circumstances are such as to raise a presumption that it is genuine ; as where one who holds land produces a deed conveying it to an ancestor, and proves a possession corresponding to the title the deed purports to convey, and a custody of the deed such as would nat- urally occur, if it were genuine. The doctrine of ancient instruments has lost much of jts practical importance under the operation of the statutes now so ex- tensively in force, providing for the re- cording of the more important written instruments affecting title, and the proof of their contents by a copy of the record. Ancients. Gentlemen in the Eng- lish inns of court who have attained a certain standing by reason of length of membership, have been termed, in the parlance of those institutions, ancients. ANCILLARY. Assistant; auxil- iary; that which aids or promotes a proceeding regarded as the principal. Thus a grant of administration ob- tained in some state where particular assets are situated, for the purpose of collecting them into the general admin- istration which is proceeding in the state of the decedent's domicile, is an ancillaiy administration. A bill in equity filed to prevent a payee of notes from transferring them to a lona fide purchaser for value, until the deter- mination of defences alleged against him could be reached at law, is an ancillary suit. ANGLIOE. In English. In old English pleadings established Latin words were used, so far as practicable, to express the cause of action, to de- sci'ibe the subject-matter in controversy, and for other purposes ; or a periphrasis was resorted to, if one could be used with sufficient certainty. But there were many things for which no names were to be found in classical Latin, ■hence it was usual, where no Latin words existed appropriate to express a thing, and no description in Latin could be giveni with the requisite certainty, to form a word with a Latin termina- tion, sometimes taking or (modifying an existing Latin word, and sometimes coining a new word, and this term was followed by Anylici and the Eng- lish equivalent. ANIMAL. This term is less exten- sive, as used in jurisprudence, than in natural science. It does not include mankind, and, until recent years, has been used, with a limitation which can- not be very precisely defined, to creatures which are of use or value to man, or in the preservation of which he has an interest. Earlier occasions for the use of the word were in reference to the protection of property in animals ; and while this was the object, useless and noxious creatures were, naturally, left out of view. For the purpose of dealing with any infraction of the right of an owner or possessor of an animal, the law had only occasion to consider such as man desired to hold, and these were viewed as domesticated or tame animals, wild animals, and creatures which, whether wild or tame, were of so base a natm-e as not to be subjects of permanent property, though they might be held in a possession which the law would pro- tect. Discussions, in the cases, as to what is included by ' ' animals ' ' in the law of property and larceny, in duty laws and statutes punishing malicious mis- chief, and the like, are to be read with reference to the term being limited by a notion of property. But another idea has arisen in recent years, under the adoption of statutes for the prevention of cruelty to animals. The enforcement of such laws was at first questioned, upon the ground that " animals " in law did not include the baser and the undomesticated creatures. Thus, in a New York police-com-t ca.se, soon after the passage of the law for the protection of animals, a prosecution for the inhuman manner of confining a turtle on exhibition at a restaurant, was contested by the argument that reptiles were not included in " animals " in the legal sense. Such views have not prevailed. Steady progress has been toward the recognition of all sentient life as deserving of legal protection against cruel malice, irrespective of any property aspect. Upon the whole, there ANIMUS 67 ANIMUS is good ground to say that, while the use of the word in any particular context or statute may be limited by the general meaning and pui-pose, yet the terra "animal" in jurisprudence may in- clude all living creatures not human. An act of 1861 exempted from duty " animals of all kinds ; birds, singing and other, the land and water fowls ; " and a later act of 1866 levied a duty of twenty per cent " on all horses, mules, cattle, sheep, hogs, and other live animals." Held, that birds were not included in the terms " other live animals." Tlie second statute must be read by the light of the first. Eieche v. Smythe, 13 Wall. 162. The word animal, as used in the statute for the punishment of cruelty, shall be taken to mean any horse, mare, gelding, bull, ox, cow, heifer, steer, calf, mule, ass, sheep, lamb, hog, pig, sow, goat, dog, cat, or any other domestic animal. Stat, 12 & 13 Vict. ch. 93, § 29. Fowls and poultry are within the phrase any other domestic animal, as used in the above statute; and torturing a cock may be punished under the act. Budge v. Par- sons, 3 Best^ S. 382; 7 Law T. N. 8. 624; 9 Jur. N. s. 796; Bates v. McCormick, 9 Law T. R. N. s. 175 ; 12 Irish Com. L. R. 577. In this and every law of this state re- lating to animals, the words " animal " or "dumb animal" shall be held to include every living creature. N. Y, Laws, 1874, ch. 12, § 8. ANIMUS. Mind, intention, purpose, or will. Occurs in many technical phrases, (usually in the ablative case, animo). The following are the most fre- quent examples: Animus et factus. Intention and act. This phrase is used to designate acts which have effect only when in- duced or accompanied by positive in- tention. Thus, a change of domicile is in general effected only by an actual change of residence, accompanied by the intention of remaining and acquir- ing a domicile in the new place of resi- dence. Where the action and intention concur, the thing is said to be done ani- mo et facto, — by intention and act. Animus hominia est anima script!. The purpose of the man is the soul of the writing. The intention of the party who executed an instrument gives life to the instrument. As respects most insti-uments, the law looks to this inten- tion as the chief guide in determining the construction and effect of what is written. Animo cancellandi. With inten- tion of cancelling. A phrase used of acts of destruction or mutilation of in- struments in writing, done not by mere accident, but with the intent to annul the instrument. Animo defamandl. With intention of defaming. The phrase expresses the malicious intent which is essential in every case of verbal injury, to render it the subject of an action for libel or slander. Animo donandi. With intention of giving. This phrase is used to express the consent to give, which is an essen- tial element of a. gift, on the part of the giver, as is the consent to receive on the part of the receiver. The animus do- nandi is rarely pi-esumed, and only when the act can bear no other cou- struction. The animus recipiendi is usually presumed when the subject of the gift is beneficial to the donee. Animo fnrandL With intention of stealing. This phrase expresses the felonious intent which is essential to make the taking the property of an- other theft or larceny. The mere taking does not constitute the crime; the property must have been taken with intent to steal it. Animo manendi. With intention of remaining. A phrase used in the discussion of questions of domicile, to express the intention to remain and establish a permanent residence, which intention is essential to the acquiring of a new domicile in the place to which the residence has been removed. It is used in opposition to animo revertendi, which expresses the contrary intention of returning to the former residence. The residence is described either as ani- mo revertendi, with intention of return- ing; or as animo manendi (sometimes in the form animo remanendi) , with inten- tion of remaining. Animo recipiendi. With intention of receiving. Expresses the consent to receive a gift, on the part of the donee, which is essential to a gift. Animo revertendi. With intention of returning. 1. This phrase is used, in the discussion of questions of domi- cile, to express the intention to return ANNEX ANNUS to a former residence, notwithstanding a temporary removal, as distinguished from the animum manendi (q. v.), — the intention of remaining at such new place of residence; or notwithstanding absence for a temporary purpose, how- ever prolonged, as in case of a sailor who follows his occupation animo rever- teniH, — with the intention of returning to his place of domicile, 2. The phrase is also used of animals astray. Property in domesticated ani- mals is not lost by its wandering from the owner's premises, if there is reason to suppose it had the intent to return. Animo revocandi. With intention of revoking. This phrase is used of such acts as the erasure or tearing-ofi of the signature to a wUl, or the de- struction of the instrument, when done with the design to revoke it. Animo testandi. With intention of making a will. ANNEX. To put one thing in per- manent connection with another. An- nexation: a connection of something with another deemed of higher penna- nence or importance. It generally implies that the thing annexed is accessory, and the other is principal. It seems never to be used of persons. Territory newly incorporated into the national domain, as a permanent acqui- sition, is said to be annexed; as in the case of the annexation of Texas ; and, somewhat similarly, annexation is used, in Scotch law, of the acquisition of lands by the crown, or by a kirk. Fixtures are spoken of as being annexed to the freehold. Attaching some subordinate or corroborative document to a plead- ing, &c., is termed annexing it. Ponderous exhibits, such as hotel regis- ters, are annexed to a deposition and certifi- cate, if they are sealed up by the magistrate and transmitted to the clerk in the same wrapper therewith. Shaw v. McGregory, 106 Mass. 96. The placing of a loose paper within the folds of a writ is not an annexation within Me. Rev. Stat.' ch. 114, § 33, authorizing a specification of the plaintiff's claim to be annexed to it. Saco v. Hopkinton, 29 Me. 268. * ANNUALLY, as applied to the pay- ment of interest, means not the payment of interest at the end Of one year only, but at the end of each and every year, during a period of time either fixed or contingent. Sparhawk «. Wills, 6 Gray, 16.3. Under a statute requiring the certificate to be filed annually, "in the month of," &o., the directors are not liable for debts in- curred after the expiration of the corre- sponding month in a subsequent year. Bond V. Clark, 6 Allen, 361. ANNUITY. A yearly payment of a certain sum of money, granted to an- other in fee or for life, or for a term of years and charged upon the person of the payer; for when it is charged upon real estate it is most commonly called a rent charge. Annuities are most com- monly created to continue for the life- time of the payee; but there seems no reason for deeming this a part of the » definition. Upon the meaning of annuity, as compared with assessment and some other words in a bequest, see Stephens v. Milnor, 24 N. J. Eq. 358; as com- pared with income, see Exp. McComb, 4 Bradf. 151 ; as compared with legacy, see lb., also. Matter of Williams, 12 N. Y. Leg. Obs. 179; as compared with rent-charge, see WagstafE v. Lowerre, 23 Barb. 209, 216. ANNUS. A year. Occurs in several technical phrases; such as the following: Annus deliberandi. The year allowed by the Scottish law for the heir to deliber- ate whether he will enter upon his ances- tor's lands, and represent him. Entry has very serious effect, and, therefore, this time is given for consideration ; it commences at the ancestor's death, unless in the case of a posthumous heir, and then from his birth. Wharton. • Annua et dies. A year and a day. This phrase designates a period of time limited by the common law for the per- formance of many acts, and for the duration of many forfeitures, warran- ties, &c. ; and is designated in English by the expression ' ' year and day. ' ' See Year. Annus luctus. The year of mourn- ing. This expression designates the period after the death of her husband during which a widow was required, by Boman law, to remain unmarried. Al- though the law ordained that she should not marry infia annum luctus, a calendar year seems not to have been always re- quired; as, in the reign of Augustus, the period was but ten months. Vide Ov. Fast. i. 27. The law was retained dur- ANOTHER 69 ANTENATUS iiig the Saxon and Danish rule in Eng- land, and descended to modern times, as a custom of more or less binding obliga^- tion, in connection with the wearing of mourning dress during the like period. Annus utilis. A year that may be used; a serviceable year. 1. This ex- pression is used, in the singular form, to denote a year made up of available or serviceable days; a year of days in ■which some right can be exercised. 2. In the plural form, — anni utiles, — the expression signifies the years during which a right may be exercised. Thus, in the construction of statutes of limita- tion or prescription, although the num- ber of years which has elapsed is suffi- cient to bar the action or right claimed, yet if, during a part of the time, the person who would otherwise be barred is an infant, or under some other dis- ability within exceptions contained in the statute relied on, those years are not reckoned against him, not being, as to him, anni utiles, or years during which his right could be claimed or exercised. Anno Domini. In the year of the Lord. This phrase is commonly pre- fixed to the number denoting the year of the Christian era; thereby distin- guishing that computation of time which is adopted by all Christian na- tions, viz., reckoning from the birth of Jesus Christ, from other modes of computing time. The initial letters, A.D., of the phrase are frequently era- ployed, followed by either words or fig- ures, for the number of the year; and this mode of designating dates is gen- erally deemed sufficiently certain, even in indictments. Figures alone, with- out any thing to denote the era from which the computation was to be reck- oned, have been held insufficient in a criminal complaint. Commonwealth v. McLoon, 5 Gray, 91. Anni nubiles. Marriageable years. Used to designate the marriageable age of women ; as in the phrase infra annos nubiles, q. v. ANOTHER. A statute punishing lar- ceny of the " personal goods of another," may sustain a conviction for larceny of goods belonging to the United States. United States v. Maxon, 5 Blatchf. 360. ANSWER. A statement made in response to a charge or a question; also, in pleading, the formal written state' ment made by a defendant in a snit in equity or admiralty, or in a civil action under the reformed codes of procedure, setting forth the grounds of his defence; corre.sponding to what, in actions under the common-law practice, is called the plea. O'SMA^.^^yi^t-ytlj'.?/. Ante litem motam. Before suit moved. A phrase used to distinguish transactions or proceedings taken or oc- curring before some particular contro- versy began, or before suit was brought, from other transactions or proceedings occurring or taken after that time, which are described as post litem motam, ANTEJURAMENTUM. By an- cient English laws, an accuser was re- quired, upon instituting a prosecution, to take an oath that he would prosecute ; and, in want of this oath, the accused might be discharged. The accused, likewise, on the day of trial, must make oath of innocence ; if he refused he was deemed guilty. Such a preliminary oath was called antejuramentmn ; also, prmjuramentum, and juramentum calum- nim. Jacob ; Mozley Sc W. ANTENATUS. Born before. Par- ticularly born before a particular period or event; e.g., subjects of Scotland bom before the union of the crowns of Eng- land and Scotland ; British subjects born in the United States before the separa- tion of the colonies from the mother country. Calvin's Case, 7 Coke, 1; 2 Kent Com. 40, 56, 58. See Alien. The rule as to the point of time at which the American antenati ceased to be British subjects differs in England and in the United Stdftes, as established by the courts of justice in the respective countries. The English rule is to take the date of the treaty of peace in 1783. The American rule is to take the date of the declaration of independence. The British doctrine is that the Ameri- can antenati, by remaining in America after the peace, lost their character of British subjects; and the American doctrine is, that those withdrawing from' this country, and adhering to the British government, lost, or perhaps, more pi-op- erly speaking, never acquired, the char- acter of American citizens. Inglis v. ANTENUPTIAL 70 APOTHECAHY Sailors' Snug Harbor, 3 Pet. 99; and see Blight v. Rochester, 7 Wheat. 544. ANTENUPTIAL. Before marriage. The grave disabilities imposed by for- mer English law upon married women, and the rights accorded over their prop- erty, if not settled to their use, to their husbands, rendered it often of much im- poi'tance that, before the marriage cere- mony, formal written engagements should be made, in which the intended wife should be represented by trustees, pirotecting her property to her own use, and to her children, and often securing other interests. These are called ante- nuptial settlements. In many of the states liberal laws enlarging the power of married women to hold property have diminished their importance. ANTICHRESIS. A contrary use. This term was employed in the civil law to designate a peculiar kind of mortgage, whereby the mortgagee, by special agree- ment, had the use of the property mort- gaged, instead of interest or other like compensation; he taking the right to use the thing pledged to him, or to reap the fruits or receive the profits, accord- ing to the nature of the thing and the terms of the agreement. It differed from a vadium vivum (q. v.) in that the profits were in no case applicable, as they might be in the latter, to extin- guish the principal debt. Antichresis is a contract whereby a debtor abandons to his creditor the profits of goods which he has hypothecated to him to hold in place of interest upon the money which he has borrowed. Cdluire 4r B. In the Roman law, pactum antichreseos was an agreement by which the creditor in a voluntary pledge had the use and profits of the thing pledged, in lieu of interest on the debt ; and there might be the further stipu- lation that any surplus should go to the ex- tinction of the debt. The contract bore gome analogy to the Scotch wadset. Bell. By the law of Louisiana, there are two kinds of pledges, — the pawn and the anti- chresis. A pawn relates to movables, and the antichresis to immovables. The anti- chresis must be reduced to writing; and the creditor thereby acquires the right to the fruits, &c., of the immovables, deduct- ing yearly their proceeds from the interest, in the first place, and afterwards from the principal of his debt. He is bound to pay taxes on the property, and to keep it in repair, unless the contrary is agreed. The creditor does not become the proprietor of the property, by failure to pay at the agreed time ; and any clause to that effect is void. He can only sue the debtor, and obtain sentence for sale of the property The possession of the property is, however, by the contract, transferred to the creditor. Livingston v. Story, 11 Pet. 351. Actual possession, as in all contracts of pledge, is of the essence of an antichresis, in Louisiana. Garcia v. Garcia, 7 La. Ann. 526. APEX JURIS. A subtlety of law. This phrase expresses an extreme point or subtlety of law; a rule or doctrine of law carried to an extreme either of se- verity or refinement ; a needlessly strict adherence to the letter of the law. The term is frequently used in the plural form, apices Juris. Apices juris non sunt jura. Sub- tleties of law are not rights. The courts disallow curious and nice exceptions tending to the overthrow or delay of justice. But this maxim is not to be understood as prohibiting the allowance of all technical objections. Even in questions of pleading or practice, the established rules of procedure are not within the meaning of the rule. Broom Max. 188. APOSTASY. Was formerly esteemed a punishable offence ; and consisted in a total renunciation of a religious belief once professed; while heresy was deny- ing only some particular doctrine. It is said to be still punishable, in England, under Stat. 9 & 10 Will. III., ch. 32 (see Brown) ; but is probably not so any- where in the United States. APOSTATA CAPIENDO. An ob- solete English writ which issued against an apostate, or one who had violated the rules of his religious order. It was ad- dressed to the sheriff, and commanded him to deliver the defendant into the custody of the abbot or prior. Reg. Orig. 71, 267; Jacob; Wharton. APOSTLES. In admiralty practice, the papers forming the record upon an appeal, transmitted from the inferior to the appellate court, for the purpose of showing what proceedings were had be- low, are sometimes called the apostles. The term is derived from the civil law, where it appears to have a more fixed and frequent use than with us. APOTHECARY. Any person who keeps a shop or building where medicines are compounded or prepared according to APPARATUS 71 APPEAL prescriptions of physicians, or where medi- cines are sold. Act of congress of July 13, 1868, §9; li Stat, at L. 119. APPARATUS. The terms apparatus and implements do not include animals. A statute which provides that the appara- tus or implements used in unlawful gaming may be seized and destroyed, does not au- thorize killing fighting cocks. Coolldge v. Choate, 11 Ptetc. {Mass.} 79. APPARSL. A statute which exempts from execution " the necessary wearing ap- parel" of a debtor, extends to cloth and trimmings which one has put into the hands of a tailor, to be made into clothes necessary for him. Richardson v. Buswell, 10 Mete. {Mass.) 506. A travelling trunk, mahogany cabinet- box, and breast-pin are not exempted un- der provisions exempting wearing apparel. Towns V. Pratt, 33 iV. H. 345. Neither are rings and jewelry. Frazier V. Barnum, 19 N. J. Eq. 316. APPARENT. That -which appears, or has been made manifest. In respect to facts involved in an appeal or writ of error, that which is stated in the record. Apparent danger, as used with refer- ence to the doctrine of self-defence in homi- cide, means such overt actual demonstra- tion, by conduct and acts, of a design to take life or do some great personal injury, as would make the killing apparently neces- sary to self-preservation. Evans v. State, 44 Miss. 762. Apparent defects, in a thing sold, are those which can be discovered by simple insjaection. La. Code, art. 2497. Apparent good order. Prefixing the word apparent, in the usual acknowledg- ment in a bill of lading that goods in pack- ages have been received in good order, making the clause read, " shipped in appa- rent good order," does not change the legal effect of the bill. The receipt of the goods, and giving a bill of lading therefor, is prima fade evidence that they were in good or- der, without an explicit statement to that effect. But the carrier's implied admission is limited to the apparent condition of the package, and, if a loss occurs, he is not pre- cluded from showing that it proceeded from some latent cause or secret defect. The Oriflamme, 1 Sawyer, 176. APPEAL. 1. When used with refer- ence to proceedings in courts of juatice, appeal signifies one principal mode of obtaining a review of a judicial deci- sion. It is a proceeding of civil-law origin; and was introduced therefrom into the procedure of courts of equity and admiralty; and has again been adopted from these into the codes of reformed procedure adopted by so many of the states ; also, into bankruptcy pro- cedui-e; while the modes of review in use by the common-law courts have been chiefly writs of error, and, seconda- rily, some discretionary writs, as certio- rari. The distiuguishing incidents of an appeal are, that the party aggrieved by the judgment below applies to the court of superior jurisdiction to rehear his cause ; his appeal being allowed (if a formal allowance is required by the law of the forum), he cites the other party to appear and answer, and takes steps in the court below to have the necessary papers or record of proceed- ings there transmitted to the appellate court. It is the original theory, that an appeal, when perfected, annuls the judg- ment below; but, to prevent injustice, provisions of positive law are very com- mon, requiring an appellant to give se- curity for the payment or performance of the final judgment, or, in default of such security, the respondent may pro- ceed upon the judgment, — at the peril, of course, of its being reversed. Upon the appeal, the cause is, strictly or by the original form of the proceeding, heard anew; is tried and decided upon proofs newly introduced, and in the same man- ner as if it had not been adjudicated. But this feature of the proceeding has been extensively modified by local stat- utes, and by judicial introduction of intendments and presumptions in favor of sustaining the proceedings below ; so that, as actually practised in many juris- dictions, appeal is little more than a re- view of the proceedings and judgment of the lower court, requiring the appel- lant to show error either in the deter- mination of the law or the facts, in order * to obtain relief. In the states which have adopted the name appeal for the review allowed of judgments governed by codes of procedure, the proceeding is subject to so much statute regulation, and is so far assimilated in its effect to writ of error, that it seems no longer possible to give a descriptive definition which shall be correct for the various states, and shall distinguish the two modes of review. The distinction between an appeal and a writ of error is that an appeal is a pro- cess of civil-law origin, and removes a cause entirely ; subjecting the fact, as well as the law, to a review and revisal : but a writ of error is of common-law origin, and APPEAL 72 APPEAR it removes npthing for re-examination but the law. Wlscart v. Dauchy, 3 Dall. 321 ; United States v. Goodwin, 7 Cranck, 108. Appeal is sometimes used to denote the nature of appellate jurisdiction, as distin- guished from original jurisdiction, without any particular regard to the mode by which a cause is transmitted to a superior juris- diction. United States v. Wonson, 1 Gall. 5, 12. Compare United States v. Goodwin, 7 Cranch, 108. Appeal signifies simply the removal of a cause from an inferior to a superior juris- diction, and is not limited to a review of questions of law. People v. Justices of Marine Court, 2 Abb. Pr. 126; 11 Bow. Pr. 400. 2. In legislative practice, a member ■who is dissatisfied with a ruling of the presiding officer may appeal to the vote of the body at large. Such an appeal is taken by rising and requesting it, orally, in the same general way as a motion is made, and is, immediately, or after such debate as the rules allow, put to vote; the question usually being, Shall the decision of the chair be sus- tained? — or to that effect. If a major- ity vote in the negative, the ruling is reversed. 3. In old English law, appeal also signifies, when spoken in reference to a prosecution for crime, an accusation by one subject against another, for a hein- ous crime; but demanding punishment for the injury sustained by himself, rather than for the offence committed against the public. Originally, appeals lay for treason ; but these have been con- sidered abolished by the statutes 5 Edw. III. oh. 9, 25 Edw. III. ch. 24,1 Hen. IV. eh. 14; see, however, Com. Dig. tit. Ap- ■ peal, A. 1. Other criminal appeals were abolished by 59 Geo. III. ch. 45. The principal kinds, while they existed, were the following: Appeal of arson; appeal of death ; appeal of mayhem ; appeal of rape; and appeal of robbery. Of these appeals, all were capital, except that of mayhem. The latest instance of an ap- peal was the celebrated case of Ashford V. Thornton, 1 Bam. §• Aid. 405 (one of rape followed by murder) ; and, probably in consequence of that case, the above- mentioned statute was passed, forbid- ding such appeals for the future. It is considered that these appeals, being in the nature of a private process for the punishment of a public crime, probably originated in the time when a private pecuniary satisfaction, or were- gild, was payable to the party injured, or his relations, to expiate even the gravest offences; but when these of- fences, by degrees, grew no longer re- deemable or compoundable by the pay- ment of a weregild, the private process was still continued, in order to insure the infliction of punishment upon the offender, though the party injured was allowed no pecuniary compensation. APPEAR. To come into court as "a party to a suit ; to make known, formally, that one will proceed in a cause. Ap- pearance, the act or step in a cause by which a party comes into court, or makes known that he wiU proceed. The words maybe used of either plain- tiff or defendant, but are most commonly predicated of defendant. They origi- nated in the times when the parties to a suit were expected actually to confront each other, personally or by attorney, before the court, previous to pleading or proceeding with the cause. This was so necessary, anciently, that stringent steps were requisite to compel a defendant to appear, if he would not voluntarily do so, before the plaintiff could proceed. The corporal appearance of defendant is still generally required upon a crim- inal trial; but in the modern practice of civil actions the appearing is con- structive or figurative : all that is done, even when full formality is observed, is to serve a notice, or enter a memoran- dum on the record, setting forth that an attorney named appears for the defend- ant. And, without this, the practice is to treat almost any step or proceeding taken which implies that defendant submits to the jurisdiction, or "has had notice and does not object, as equivalent to an ap- pearance, and operative to waive any defects or irregularities in the service of process. For after defendant has appeared, generally, these become of no importance. Instances of the applica- tion of this principle are cases where a defendant has been held concluded, as if he had formally appeared, by applying for and obtaining an order from the court giving him time to answer, and serving that order, with a notice signed by an attorney as " attorney for the defend- APPEAR 73 APPELLANT ant," Ayres i'. Western R. R. Corp., 32 How. Pr. 351, 48 Barb. 132; by put- ting in an answer, Hayes v. Siiattuck, 21 Cal. 51 ; by interposing a demurrer, KeggB. Welden, 10 Ind. 550; Knight w. Low, 15 Id. 874; Evans ». lies, 7 Ohio St. 233; by moving to dissolve an at- tachment. Whiting V. Budd, 5 Mo. 443; by filing an affidavit controverting the ground upon which an attachment is- sued, and praying for a discharge thereof, Duncan v. Wickliffe, 4 Melc. {Ky.) 118; by moving for a continuance and change of venue, Shaffer v. Trimble, 2 Greene, 464; by moving to set aside an inter- locutory order, Tallman v. McCarty, 11 Wis. 401 ; by moving to mitigate dam- ages, and for a new trial, and taking a bill of exceptions to the decision thereon, Wilson V. Fowler, 3 Ark. 463; by at- tending and taking part in the trial, Scott V. Niles, 40 Vt. 573 ; by taking an appeal. Fee v. Big Sand Iron Co., 13 Ohio, 563; Weaver v. Stone, 2 Grant Cos. 422: but, to constitute an appear- ance within this principle, there should be some formal entry, plea, or motion, evincing an intent to appear; and it should be ascertainable by the record, Scott V. Hull, 14 Ind. 136. Thus it has been held that appearance should not be implied from indorsing an admission of service on a summohs, National Bank v. Rogers, 12 Minn. 529; from giving no- tice of retainer, Wandelaer v. Coomer, 6 Johns. 328; Vanderpoel ». Wright, 1 Cow. 209; Mann v. Carley, 4 Id. 148 (though modern practice is probably less strict) ; from giving bail, after an arrest under bail process, Lanneau v. Ervin, 12 Rich. 31 ; from giving a bond by third parties, to dissolve an attachment, Clark t'. Bryan, 16 Md. 171; from giving an attachment bond, in a suit in rem, in order to get possession of a seized ves- sel, and taking depositions, Coplinger v. Steamboat, 14 Ind. 480; from making a motion to quash, Fergusons. Ross, 5 Ark. 517; Gooch v. Jeter, Id. 383; from giv- ing notice of a motion to dissolve an attachment, where there had been no personal service, Glidden v. Packard, 28 Cal. 649; from taking a deposition, or attending on the taking one by the plain- tiff, Scott V. HuU, 14 Ind. 136; from filing an answer, by attorney, protesting against the jurisdiction of the court, Sullivan v. Frazee, 4 Robt. 616 ; from moving to set aside a judgment, where there had been no personal service of process. Lutes v. Perkins, 6 Mo. 57 ; from giving notice of appeal, under a statute providing that " a defendant shall be deemed to appear in an action when he answers, demurs, or gives the plaintiff a written notice of appearance," Steinbach V. Lee§e, 27 Cal. 295; from signing an appeal bond in a suit on a note, by one of two joint-makers, who has not been served with process, Hendrichti. Kellogg, 3 Iowa, 215 ; from taking an appeal from a judgment rendered by default, Rose v. Ford, 2 Ark. 26 ; and when an attorney entered his name for the defendant, and afterwards erased his name and wrote the word mistake, it was held that this ■was not an appearance which would cure the want of service of process. Fore- man V. Lay, 6 Ala. 784. There have been many similar cases; the general principle being that an act or step taken in the cause will operate as an appear- ance, if it fairly implies that defendant submits to be sued, or has received no- tice of the suit and does not at once object to the manner of the notice. The foregoing explanations relate to appearance when the word is used with- out qualification, or to what is called a general appearance. Appearances are known as general, special, or conditional, according as they are unqualified, or are made for some specific pui-pose, as to make a certain motion, or are coupled with conditions. They are known as voluntary, compulsory, or optional, accord- ing as they are entered freely, or are compelled by some adverse step of plain- tiff, or are made by a person who is un- der no obligation to appear, but applies to do so, in order to save certain rights. They are in person or by attorney or by next friend, in various cases, according as the party defends himself, or employs an attorney, or, being under disability, is required to be represented. In common parlance, appearing for a defendant is sometimes regarded as nearly synonymous with answering ; but this is a loose use of the word. Laraljee d. Larabee, 33 Me. 100. APPELLANT. The party who takes an appeal. APPELLATE 74 APPOINT APPELLATE. Pertaining to the judicial review of adjudications. Ap- pellate is used in a broader sense than appeal: thus appellate jurisdiction is the power to take cognizance of and review proceedings had in an inferior court, irrespective of the manner in ■which they are brought up, whether by appeal, or by writ of error, or even by certiorari. Appellate does not include such power of review as is exercised by the secretary of the interior, or the commissioner of the land office, over the action of inferior land ofB- cers. This is supervisory power, rather than appellate. Hestres v. Brennan, 60 Cal. 211. APPELLEE. The ■ party against whom an appeal is taken; also called the respondent. APPENDAGE. A statutory provision relative to appendages of a railroad does not include the rolling-stock. An appen- dage is something added as an accessory to, or the subordinate part of, another thing. Engines and cars are no more ap- pendages of a railroad than are wagons and carriages appendages of a highway. While they are essential to the enjoyment of the road, they do not constitute any part of it. State V. Somerville, &c. R. E. Co., 28 N. J. L. 21, 26. APPENDANT. A thing of inheritance belonging to another inheritance which is more worthy : as an advowson, common, &c., wliich may be appendant to a manor, common of fishing to a freehold, a seat in a church to a house, &c. It differs from ap- purtenance, in that appendant must be h^ prescription, i.e. a personal usage for a considerable time; while an appurtenance may be created at this day, for if a grant be made to a man and his heirs, of common in such a moor for his beasts levant or couchant upon his manor, the commons are appurtenant to the manor. ( Co. Litt. 121 6. ) Wharton. An appendant is that which, beyond memory, has belonged to another thing more wortliy, and which agrees with that to which it is related, in its nature and quality ; and an appurtenant is that the commencement of which may be known. Appendances and appurtenances will pass by the words " with the appurtenances thereunto belonging," or by other tanta- mount expressions. Leonard v. White, 7 Mass. 6. See also Jackson v. Striker, 1 Johns. Cos. 284, 291. APPLY. 1. To ask or request; but generally in the sense of a somewhat formal request to some superior. Thus, one is said to apply to the court for an order; to the governor for a pardon; to a corporation for insurance. Applica- tion: a request, usually a formal request in writing, in some matter involving exercise of authority or discretion. In insurance, the written application for the policy forms the basis of the con- tract, is usually referred to in the policy aa forming a part of it, and the truth- fulness of its statements may become of g^eat importance in determining the validity of the insurance. 2. To devote or appropriate to a par- ticular use, purpose, demand, or subject- matter: as to apply money to the pay- ment of debts ; to apply the words of a contract or statute to the things desig- nated. Applicable : that which may be devoted to some particular use, or em- ployed to further some purpose. Ap- plied: that which has been devoted or employed to its use or purpose. Appli- cation: the act of devoting or appropri- ating; also, sometimes the use or pur- pose to which a thing or fund has been devoted. Application of payments is determi- nation to which of several demands a general payment made by a debtor to his creditor shaH be applied. Applicable. A general law should always be construed as within a constitu- tional provision prohibiting local laws when a general law can be made applicable, — where the entire people of the state have an interest in the subject, as statutes of frauds and limitations ; but where only a portion of the people are affected, as in lo- cating a county seat, the applicability will depend on the facts of each particular case. Evans «. Job, 8 Nev. 322. Applied. An agreement contemplating the issue of shares of stock to be applied to payment of interest due, was held to mean not that the stock was to be applied, but that it should be sold and the proceeds ap- plied. Manice v. Hudson Kiver K. K. Co., 3 Uuer, 426. APPOINT. 1. To select or desig- nate a person to hold an office or dis- charge a trust. Appointment: the act of designating a person to hold an office or trust. Appointee is applied to the person so designated, until he has ac- cepted and qualified. Appointment, in this sense, usually implies an individual power, as distin- guished from a designation by votes of many persons, for which election is th& better term; also, a complete power to vest the office, and in this differs from APPORTIONMENT 75 APPRAISE nomination, which is an advisory desig- nation only, and subject to election or confirmation. To authorize commlBsioners to be elected by a certain board of officials is not an in- fringement of a constitutional provision that they shall be either " elected by the people or appointed as the legislature may direct ; " for, although the word elected is used in the statute, the mode prescribed for selecting the commissioners is, in legal ef- fect, an appointment, and comes within the meaning of that word as used in the constitution. Sturgis v. SpofEord, 45 N, Y. 446. Legislation which prolongs the term of an incumbent of an office is not an ap- pointment. People V. Batchelor, 22 N. Y. 128. When a person has been nominated to an office by the president, confirmed by the senate, and his commission is signed and sealed, his appointment is complete; and, on complying with the conditions estab- lished by law, his title to enter on the pos- session of his office is also complete, and the transmission of his commission to such officer is not essential to his investiture of the office. United States v. Le Baron, 19 Mow. 73 ; United States v. Stewart, Id. 79. An appointment within the meaning of the constitution of Kentucky is completed when the commission is made out, signed by the governor, and transmitted to the appointee. Justices v. Clark, 1 T. B. Mon. 82. 2. Appoint is also used, quite tech- nically, in reference to property. Where a donor of lands, by deed or will, has by that instrument clothed some person, often the individual named to enjoy the earliest estate created, with power to designate one to enjoy it aftei'wards, this is a power of appointment; the exercise of it is appointment; and the term is also sometimes applied to the instrument by which the power is exer- cised. The person receiving the estate is the appointee. The person author- ized to select him is sometimes, though rarely, called the appointor; he must be distinguished from the donor of the power. Appointment may signify an appropria- tion of money to a specific purpose. Har- ris V. Clark, 3 N. Y. 93, 119. APPORTIONMENT. In its gen- eral sense, is the division of a fund, or property, or other subject-matter, in shares proportioned to different de- mands, or appropriate to satisfy rival claims. Apportionment of annuities is called for when the annuitant dies during the year; and such part of the annual sum as corresponds with the part of the year already expired is claimed by his repre- sentatives as properly belonging to his estate. Apportionment of a right of common is a division of the right to share it between several persons, among whom the land to which, as an entirety, it first belonged, has been divided. Apportionment of rent may arise in several cases ; where the leasehold estate has been divided, and the obligation to pay rent must be shared accordingly; where there has been a partition of the estate in reversion, subject to the lease, axid several persons are entitled to re- ceive portions of the rent; where the premises are rendered untenantable dur- ing a term, and the rent payable is to be reduced proportionably. These va- rious forms of apportionment are more minutely known in England than in this country, and have there been subject to numerous statutory regulations. Apportionment, under contracts, con- sists in the allowance upon a partial performance, of a proportionate part of what the party would have received as a recompense for entire performance. Where the contract is to do an entire thing for a certain specified compensar tion, there is no right of apportionirient. Apportionment of representatives takes place under the constitution of the United States (and there is a similar apportionment of members of the legis- lature, under the state constitutions), upon each decennial census ; after which, the number of representatives which each state may send is newly deter- mined, proportionately to the population . Apportionment of corporate shares is necessary where more shares are sub- scribed than the charter allows to be issued : hence, the number allowed must be divided among the subscribers in proportion to their offers. A direction to apportion stock among the subscribers does not require that every subscriber should receive some of the stock. Clarke v. Brooklyn Bank, 1 Edvi. 361, 368; Haight V. Day, 1 Johns. Ch. 18. APPRAISE. To value; fix the worth of; estimate at a price; usually APPRAISERS 76 APPRENTICE spoken of an estimate made with some measure of authority. Appraiser: one clothed with authority to determine the value of property. Appraisal or ap- praisement: a valuation or price fixed upon property by the estimate of an authorized person ; also the act of mak- ing such estimate. Appraisals are made under legal sanc- tions in several affairs. In the admin- istration of estates, it is usual to require the assets to be inventoried, and an ap- praisal made of their value; with the amount of which the executor or admin- istrator stands charged, until he ac- counts for its disposal. In collection of duties, where the value of dutiable goods is in question, it is determined by appraisers. See Merchant Apprais- ers. Leases containing covenants of renewal for long terms often provide that the rent upon a renewal shall be a percentage upon the value of the land at that time, to be determined by ap- pi-aisers. Appraisers, in a lease providing for appraisement of the property, a fixed per- centage whereof is to be the rent, imports disinterested persons. Pool v. Hennessy, 39 Iowa, 192. APPRENTICE. A person, usually a minor, under legal engagement to serve an artisan or tradesman, in consid- eration of being taught his art or trade. Apprenticeship, the contract or relation between the apprentice and his master. The distinguishing incidents of the relation are usually, that it is consti- tuted by an instrument under seal, called the indenture; to which the con- sent of the parent of the apprentice, if any, and the approval of some author- ized magistrate, is necessary, as well as the assent of the immediate parties; that the engagement binds the master to teach his art or trade to the youth, as well as to maintain him, hence the in- denture is not assignable, except by per- mission of statute ; and requires the lat- ter to learn and serve faithfully ; that the engagement is mutual for a term deemed sufficient (the years from four- teen to twenty-one being commonly taken), to allow the apprentice time for learning the master's trade, and the master a fair opportunity of gaining, by the skilled aervice of the apprentice dur- ing the later portion of the term, com- pensation for the instruction and main- tenance given; and that the master, during the term, stands in most re- spects in loco parentis towards the ap- prentice, and is clothed with much of a father's authority and responsibility. Careful statutory provisions have been usual for securing the faithful perform- ance of the master's engagements, and for enforcing obedience and fidelity on the part of the apprentice: but these differ in various jurisdictions, and the system itself is not maintained as dis- tinctly and strictly as in former times. Apprenticeship had its origin in days when the various trades were encom- passed with restrictions as to the persons who might enter them. Modern customs, which have So greatly relaxed the rules governing the exercise of the arts and trades, have correspondingly modified the strict characteristics of apprentice- ship. Apprenticeships were altogether un- known to the ancients. Tlie reciprocal duties of master and apprentice make a considerable article in every modem code. The Roman law is perfectly silent with regard to them. I know no Greek or Latin word (I might venture, I believe, to assert that there is none) which expresses the idea we now annex to the word apprentice, — a servant bound to work at a particular trade, for the benefit of a master, during a term of years, upon condition that the master shall teach him that trade." Smith, Wealth of Nations, b. 1, ch. 10. The term apprenticeship does not neces- sarily imply a formal binding out for a term of years- At common law, such bind- ing out was not obligatory ; though acts of parliament prescribed it. In America, the common-law doctrine prevails ; as a general rule any man may use what trade he pleases. The Fla. pilot law, requiring " a regular ap- prenticeship of two years," does not neces- sarily mean that there must be a formal binding of the learner to a master. The accepted definition of " apprentice " is, that service in the trade, or a following of the occupation, is enough ; a binding out is not necessary. State v. Jones, 16 Fla. 306. Apprentice is derived from apprendre, to learn, and signifies "a young person bound by indentures to a tradesman or an artificer, who, upon certain covenants, is to teach him his mystery or trade. Apprentices are, however, not strictly confined to tradesmen or artificers: hus- bandmen may take apprentices ; but in doing BO they must covenant to teach them the art and mystery of husbandry." It is essential to every legal indenture of appren- APPROPRIATE 77 APPROPRIATE ticeship that the master or miatress must engage or covenant to teach the apprentice some trade, art, or mystery : this is the element wliich distinguishes apprentice- ship from menial service. To constitute an apprenticeship, something is to be learned : there can be no apprenticeship without this characteristic mark. Hopewell v. Amwell, 3 A^. J. L. 422 (320). APPROPRIATE. To determine the use of; to reserve or destine a fund or property for a distinct use, or for the payment of a particular demand. As used with reference to funds, appro- priate is very nearly synonymous with one of the senses of apply, q. v.; and the two are often used interchangeably. There is, however, a distinction: appro- priate is rather to decide that a certain fund, for instance, shall be in the future e xpended for a certain pur pose ; apply is to make the expenditure in faSt. Money in the treasury is appropriated to the jjayment of specific claims, by an enact- ment which reserves it for these, though it yet remains in the treasury unex- pended ; it is applied to them when actual payment is made. In more gen- eral uses of the two words, applied and appropriated, they can hardly be dis- criminated. Appropriation is, originally, the act of appropriating. In common parlance, the money in the public treasury which has been appropriated to some public use is called the appropriation. A specific appropriation is an act of the legislature by wMch a named sum of money has been set apart in the treasury, and devoted to the payment of a particular demand. Stratton v. Green, 45 Cal. 149. There may be an appropriation of public moneys to the payment of a claim, without the employment of the word appropriate in the statute. State v. Bordelon, 6 La. Ann. 68. To constitute an equitable assignment of a particular fund in payment of a debt, there must he some appropriation of the fund, either by giving an order upon it, or by transferring it in such a manner that the holder would be authorized to pay it to the creditor directly, without the further inter- vention of the debtor. This is the distinc- tion between a mere contract to pay out of certain funds, and an appropriation which courts of equity will uphold as an equitable assignment. Hoyt v. Story, 3 Barb. 262. Appropriate, as used in the Declaration of Rights, art. 10, — relating to the acquisi- tion of property by right of eminent domain, — includes every mode by which property may be applied to the use of the public, and extends to every species of valuable right and interest, such as real and personal prop- erty, easements, franchises, and incorporeal hereditaments. Boston & Lowell R. B. Corp. V. Salem & Lowell B. E. Co., 2 Gray, 1,35. Under a policy of insurance upon a building, containing a stipulation that, if the premises are "appropriated or used" for carrying on the trade of a carpenter, &c., the policy shall be void, the mere setting up of the machinery, &c., for the manufac- ture of boxes is not such an appropriation of a part of the premises to carpenter's work as avoids the policy. United States, &c. Ins Co. V. Kimberly, 34 Md. 227. Appropriation, as used in the act of con- gress of July 4, 1864, restricting the juris- diction of the court of claims from claims for the destruction or appropriation of prop- erty by the army or navy in the suppression of the rebellion, &c., includes all taking or using of property by the army or navy, during the war, not authorized by a valid contract with the government. Klor v. United States, 9 Wdl. 45. The term excludes the idea of purchase, and relates to those acts of military power which exist and belong within the state of war, and which are generally confined to an enemy's country. Waters' Case, 4 Ct. o/«. 389. Taking steamers into the temporary employment of the government, under a pressing military necessity, was held, under the circumstances, not an appropriation by the army so as to exclude the owner's claim for hire from the jurisdiction of the court of claims. United States v. Russell, 13 Wall. 623. Appropriation, in English ecclesiastical law, signifies the annexing of a benefice to the proper and perpetual use of some relig- ious house, bishopric, college, or spiritual person, to enjoy for ever ; in the same way as impropriation is the annexing a benefice to the use of a lay person or corporation, that which is an appropriation in the hands of religious persons being usually called an impropriation in the hands of the laity. ( Com. Dig. tit. Advowson, D. E.) This con- trivance seems to have sprung from the policy of monastic orders. At the first es- tablishment of parochial clergy, the tithes of the parish were distributed in four parts, — one for the bishop, one to maintain the fabric of the church, a third for the poor, and the fourth for the incumbent. The sees of the bishops becoming amply endowed, their shares sunk into the others ; and the monasteries, inferring that a small part was enough for the officiating priests, appropri- ated as many benefices as they could by any means obtain to their own use ; under- taking to keep the church in repair, and to have it constantly served. But in order to complete such appropriation effectually, the king's license and consent of the bishop must first be obtained ; the consent of the patron is also necessarily implied. Jacob. APPROVE 78 APPURTENANCE Appropriation of payments. This phrase is sometimes used to mean the application of a general payment to the discharge of a particular debt among several which are due from the payer to the payee. Application of payments is a more appropriate designation. APPROVE ; APPROVER ; AP- PROVEMENT. Approvement has sev eral meanings. 1. It signifies much the same as improvement ; thus, approvement of common means the enclosing a part of a common by the lord of the manor, for the purpose of cultivating the same, leaving sufficient for the commoners. 2. It is said to signify the profits of a farm. (Cornel.) 3. It signifies the act of an approver, who, when indicted of treason or felony, and arraigned for the same, confesses the fact before plea pleaded, and accuses oth- ers, his accomplices, of the same crime, in order to obtain his own pardon. (3 Cruise, 89; Cowel; 2 Dum. ^ E. 391.) Braum. Approver, in the old criminal law, signi- fied a person who, when indicted of treason or felony, and arraigned for the same, did confess the fact before plea pleaded, and appeal or accuse others, his accomplices, of the same crime, in order to obtain his par- don. This could only be done in capital offences. If the accused, or, as he was called, the appellee, were found guilty, he suffered the judgment of the law, and the approver had his pardon ex debito justitice ; but, if the jury acquitted the appellee, the approver received judgment to be hanged, upon his own confession of the indictment. The modem practice, however, is for the justices of the peace, in cases where it ap- pears probable that the evidence will other- wise be insufficient to obtain a conviction, to hold out a hope to some one of the ac- complices, that if he will fairly disclose the whole truth as a witness on tlie trial, or, as it is termed, become queen's evidence, and bring the other offenders to justice, he shall himself escape punishment. The reception of the evidence is in the discretion of the court : and, should it prove to be unsatisfac- tory, the approver is liable to be tried for the offence, and may be convicted on his own confession. (4 Steph. Com. 394.) Mozley In old statutes, bailiffs of lords in their franchises are called their approvers ; and approvers in the marches of Wales were such as had license de vendre et acheter beasts, &o. But, by the statute 2 Edw. III. ch. 12, approvers are such as are sent into counties to increase the farms of hundreds, i&c, held by sheriffs. Such persons as have the letting of the king's demesnes in small manors are called approvers of the king. Stat. 51 Hen. III. st. 5. And in the stat. 1 Edw. III. St. 1, ch. 8, sheriffs are called the king's approvers. Jacob, APPURTENANCE. Something con- nected as an incident with another thing • deemed a principal, and necessary to its enjoyment, so that the two are usually' dealt with as one subject-matter. Ap- ^ purtenant: annexed or pertaining to^ some more important thing. Appur-^ tenant and appurtenances are substan- . tially the same in meaning as accessory and accessories; but they are more tech-' nically used in relation to property, and are the more appropriate words for a conveyance. The reports contain many decisions upon the question what prop- erty shall be deemed to pass by a con- veyance of a described subject-matter with its appurtenances. Appurtenant denotes annexed or belong- ing to; but in law it denotes an annex- ation which is of convenience merely and not of necessity, and which may have had its origin at any time, in both which re- spects it is distinguished from appendant. In conveyances of lands and houses, it is usual to add to the parcels, or else to the habendum, or to both, the phrase, " with the appurtenances," and, to make surer, to add " or reputed as appurtenant or belonging thereto." The term is commonly confined in law to the purely incorporeal heredita- ments that are commonly annexed to lands or to houses, and may include as well com- mon as any other right. (Lister v. Pickford, 34 Beav. 676.) Broivn. The appurtenance and the thing to which it is appurtenant must agree in nature and quality : thus a seat in church may be ap- purtenant to a house, but not to land. Where a mill was sold with the appurten- ances, a kiln, occupied with the mill for many years, did not pass, it not appearing but that the kiln was a lime-kiln, having no relation to the mill; though, had it been shown to be a malt-kiln, it might pass. 3 Salk. 40. Appurtenances, in a will or deed, compre- hends only things in their nature incident to the tract conveyed : it never includes other land. Helme v. Guy, 2 Murph. 341 ; Otis V. Smith, 9 Pick. 293. A deed conveying land, together with the appurtenances, cannot include an adjacent strip of land. Land cannot be an appur- tenance to land. New York Central R. E. Co. y. Buffalo Railway Co., 49 Barb. 501. Strictly speaking, in a legal sense, land can never be appurtenant to land. A thing, to be appurtenant to another, must be of a different and congruous nature ; such as an easement or servitude, or some collateral incident belonging to and for the benefit of the land. In a case, therefore, where the words of a grant pass land, with its appur- tenances, the law will, in the absence of any controlling words, deem the word ap- purtenances to be used in its technical sense. Even if there is nothing in rerum APPURTEKANCE 79 APPURTENANCE natttra upon which the word can operate, that does not entitle the court to desert the legal sense. It is not necessary to show that there are things granted to which the word applies. The word is often thrown in by conveyancers without any actual knowledge of the premises, to avail, as far as it may avail, by way of cautionary en- largement of the principal grant, if there be any thing on which it may operate. If there .be in fact no appurtenances, then the word, lilce other expletives in a deed, is merely nugatory. United States v. Harris, 1 iSumn. 21. In wills, land may pass under the term appurtenances, to give effect to the intent. Otis V. Smith, 9 Pick. 293. The fee of an adjoining road does not pass by a deed, as an appurtenance of the land professedly granted, described in the deed by precise and definite boundaries. Jackson v. Hathaway, 15 Johns. 447. By a deed of land adjoining a street, " with the appurtenances," the fee of the street does not pass to the grantee. Harris V. Elliott, 10 Pet. 25. By appurtenances, in a deed of 5,000 acres of Pennsylvania lands, dated 1704, It was held that the usual city lots and liberty lands passed. Hill v. West, 4 Yeates, 142. A conveyance of land, "with all the buildings, ways, privileges, and appurten- ances, to the same belonging," is appropri- ate language to convey an easement or appurtenance already existing and belong- ing to the land, but not to create a new one. Kenyon v. Nichols, 1 R. I. 411. Buildings are in no just sense appurten- ances to land ; if annexed to the freehold, they are a parcel of the land, and pass as such by a conveyance of the land. United States V. Harris, 1 Sumn. 21, 38. Appurtenances in a partition of an estate whereon are certain mine-hills, includes the right to take ore. Grubb v. Grubb, 74 Pa. St. 25. One entire railroad will not pass by the word appurtenance to another railroad, any more than one tract of land would pass as appurtenant to another. Philadelphia v. Philadelphia, &c. R. K. Co., 58 Pa. St. 253. A grant of a messuage, with the appur- tenances, passes only what is parcel of the house, — the buildings, curtilage, and gar- dens. Bettisworth's Case, 2 Coke, 31 a. Although by a devise of a house with the appurtenances, only the garden and orchard will pass witli the house, a devise of a house with the lands appertaining will pass the land usually occupied therewith. Black- born V. Edgley, 1 P. Wms. 600. Although land cannot be appurtenant to a messuage in the proper meaning of an a ppurtenance, a grant of a messuage with the lands appertaining thereto must be taken in the sense of the messuage and the lands usually occupied with or lying to it. Hill V. Grange, 1 Plowd. 164. Although, according to the strict techni- cal signification of the word, land cannot be appurtenant to a house, yet, where a house is conveyed with its appurtenances, the word must refer to land, if it is to have any mean- ing, and as the grantor must have used it to indicate land. At least the garden, curti- lage, and close adjoining the house, will pass as parcel of the house. Ammidowu v. Ball, 8 Allen, 293. Under a mechanic's lien law, allowing liens upon land or lots for "buildings or appurtenances to buildings " thereon erect- ed, a vault under the sidewalk adjacent to the lot is not an appurtenance, and cannot be made subject to a lien. Parmelee v. Hambleton, 19 III. 615. Appurtenances may include a yard and sidewalk of a building. McDermott v. Palmer, 8 N. Y. 38-3, 387. Appurtenant, as used in Gen. Stat. ch.l78, §§ 6, 46, relating to escapes from " yards," &c., adjoining or " appurtenant " to houses of correction, embraces any yard entirely devoted to the purposes of the institution, though not immediately connected with it. Commonwealth v. Curley, 101 Mass. 24. A policy insuring all articles making up the stock of a pork house, and all within and appurtenant to the building, covers every thing in the building properly be- longing to a pork house, without regard to the particular ownership of each and every article contained in or appurtenant to the building. JEtna Ins. Co. v. Jackson, 16 B. Mm. 242. See, to the same effect, Crosby V. yranklin Ins. Co., 5 Gray, 504 ; Haley v. Dorchester, &c. Ins. Co , 12 Id. 545 ; Bryant ■ V. Poughkeepsie, &c. Ins. Co., 17 TV. Y. 200, 21 Barb. 154 ; Pindar i>. King's County Ins. Co., 36 N. Y. 648 ; Bigler v. New York Cen- tral Ins. Co., 20 Barb. 6.35. By the grant of a grist-mill, with the appurtenances, the soil of a way immemo- rlally used for the purpose of access to the . mill does not pass ; but it may be treated as a grant of the easement for the accom- modation of the mill. Leonard v. White, 7 Mass. 6. A devise of a grist-mill, with the appur- tenances, will pass every thing necessary for the full and free enjoyment of the grist- mill, and requisite for the support of the establishment, such as a dam, water, the race leading to the mill, a proper portion of ground before the mill for the unloading and loading of horses, wagons, &c., as used by the testator. Blaine o. Chambers, 1 Sera. Sr R. 169. Under appurtenances, in a deed, a water- power appurtenant to a mill passes; the grantor need not insert the word privilege, though contained in the contract between the vendor and vendee. Pickering v. Sta- pler, 5 Serg. ^ R. 109. What is necessary for the enjoyment of a mill stream passes as appurtenant, but what is convenient merely does not ; there- fore, one who hires a tan-yard and bark- • mill cannot throw the contents into the stream, nor put his waste bark on the les- APUD 80 ARBITER (or's adjoining laud. Howell v. M'Coy, 3 Rawle, 236. Appurtenances of a riparian lot includes an addition formed by an extension of the port-warden's line outward. Williams v. Baker, 41 Md. 523. Flats may pass as appurtenant to a wharf, notwithstanding the maxim that land can- not pass as appurtenant to land. Doane v. Broad Street Assoc, 6 Mass. 332. A written agreement for the sale or a conveyance of a "bridge, with the privi- leges and appurtenances," will pass the land upon which it stands, and that which is necessary to its beneficial use and enjoy- ment. Sparks v. Hess, 15 Cal. 186. Appurtenances, as used in rule 8 of the supreme court rules in admiralty, — enumerating a ship's tackle, sails, apparel, furniture, boats, or other appurtenances, — includes other articles than those previously specified, furnished to the vessel by her own- ers, for the uses of the voyage, although not required in navigation ; such as, in a vessel intended for the pearl fishery, a diving-bell and air-pump. 'The Witch Queen, 3 Saw- yer, 201. Appurtenance, used in the return of levy by a sheriff, is too general and indefinite to comprehend in its meaning any personal property as the subject of levy ; it there- fore passes nothing. Monroe o. Thomas, 5 Cal. 470. Apud acta. Among the acts ; among the recorded proceedings. In the civil law, this phrase is applied to appeals taken orally, in the presence of the judge, at the time of judgment or sen-, tence. Hence any proceedings taken viva voce, in the presence of the court and all the parties, may be termed apud acta; the use of the term being some- what analogous to the modern phrase " in open com-t." Aqua cedit solo. "Water passes with the land. A grant of land conveys the water which covers the land. Aqua currit, et debet currere, nt currere solebat. Water runs, and ought to run, as it has used to run. A running stream should be allowed to flow in its natural channel, without alteration or diversion. The maxim ap- plies, of course, only to watercourses, and is not to be understood as prohibit- ing a diversion or reasonable detention of the water of a stream by a riparian proprietor, if the water is returned to its accustomed channel before it passes the land of the next proprietor below, not diminished in quantity nor polluted or defiled in any way. A watercourse begins ex jure naturae, and, having taken a certain course naturally, it cannot be lawfullv diverted. Shurry u, Pigott, 3 Bulstr. 339. The right to the use of a stream is inci- dent or appurtenant to the land through which it passes. The stream cannot be law- fully diverted, unless it is returned again to its accustomed channel, before it passes the land of a proprietor below. Running water is not susceptible of an appropriation which will justify the diversion or unreasonable de- tention of it. Blanehard v. Baker, 8 Me. 253. ARBITER. Originally a kind of judge, in the Roman law, distinguished by being clothed with a certain discre- tionary power or authority to decide by principles of natural justice in prefer- ence to strict law. In modern language, a person chosen by parties to determine a controversy between them; being nearly the same as an Arbitkatob, q. v. Cowel says, in substance, that an arbiter is a person bound to decide according to the rules of law and equity, as distin- guished from an arbitrator, who may proceed wholly at his own discretion, so that it be according to the judg- ment of a sound man; while Russell considers that this distinction between arbiters and arbitrators is not ob- served in modern law. Russ. Arh. 112. The true distinction between the terms appears to be this : Arbitrator is a tech- nical name of a person selected with reference to an established system for friendly determination of controversies, which, though not judicial, is yet regu- lated by law; so that the powers and duties of the arbitrator, when once he is chosen, are prescribed by law, and his doings may be judicially revised if he has exceeded his authority. Arbiter is an untechnical designation of a person to whom a controversy is referred, irre- spective of any law to govern the deci- sion ; and is the proper word to signify a referee of a question outside of or above municipal law. A question of honor, or of courtesy; a wager; and therefore not subject-matter for legal adjudication, may be referred for deci- sion, wholly independent of any statu- tory system authorizing and enforcing arbitration; and the referee, not being technically an arbitrator, is well desig- nated by the term arbiter. But the terms are nearly synonymous. ARBITRATION 81 ARCHIVES ARBITRATION, or ARBITRA- MENT. A non-judicial mode of de- termining controversies, in which the parties submit their demands to indi- viduals chosen by themselves, who hear and decide it by authority derived from the consent, but under guidance of law. Arbitration, in its most general sense, includes the entire proceeding, — the submission, hearing, and decision; in a narrower sense, it denotes the proceed- ings of submission and hearing only, the decision being distinctly spoken of as the award. Arbitrators are the per- sons chosen by the parties to a contro- versy, to determine it. The distinguishing incidents of an arbitration are, that the parties agree to submit their controversy to the deci- sion of persons chosen by themselves, instead of resorting to an action in a court of justice, which agreement is termed the submission; that their ar- bitrators, usually chosen one by each party (with leave, in case of disagree- ment, to choose a third, called umpire), are limited in powers, with respect to what questions they may assume to de- cide, by the submission, but are empow- ered and governed in respect to their course in hearing and deciding, by the law; not, indeed, that they must decide the merits according to the rule of law that would determine them in a court of justice, but that they are subject to the law of arbitrations, and not in-e- sponsible; and that, for whatever the law recognizes as a breach of arbitra- tor's duty, — unfair conduct in the hear- ing, assuming to decide a question not submitted, failing to decide the whole of an entire question, or wilfully mak- ing an unjust and partial decision, — their award may be set aside. But the law of arbitrations is subject to distinct statutory regulations, which vary in the diffeient jurisdictions. Arbor dum crescit; lignum dum cresoere nescit. A tree while it grows ; wood when it ceases to grow. That wliich is a tree while it is growing is deemed merely wood as soon as it ceases to gi-ow. This maxim states a distinc- tion between real and personal property in regard to trees and wood, which is well established. Thus a charge of stealing wood is held actionable per se, as importing an accusation of felony; a tree after it is cut down and becomes wood being the subject of larceny, while the cutting down and carrying away growing trees is but trespass. Lo v. Saunders, Cro. Jac. 166; Dexter v. Ta- ber, 12 Johns. 239. ARCHAIONOMIA. The name of an ancient collection of Saxon laws. It was first published during the reign of Queen Elizabeth, in the Saxon language, with a Latin version by Mr. Lambard ; and was republished, with additions, by Wilkins, in his work entitled Leges A nglo- SaxoniccB. ARCHBISHOP. The head or chief of the clergy in a whole province. He has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause. The archbishop has his own diocese, wherein he exercises episcopal, as in his province he exercises archiepiscopal, jurisdiction. To him or to iiis court, all appeals are made from inferior jurisdictions within his prov- ince ; and, as an appeal lies or lay from the bishops in person to him in person, so it also lies from the consistory courts of each dio- cese to his archiepiscopal coiirt. (1 Bums Ecc. Law ; 2 Roll. Abr.) Brown. ARCHDEACON. A dignitary of the church who has ecclesiastical jurisdiction immediately subordinate to that of the bishop, either throughout the whole of his diocese or in some particular part of it. He is nominally appointed by the bishop himself, and has a kind of episcopal author- ity originally derived from the bishop, but now independent and distinct. It was for- merly his office to grant letters of adminis- tration ; but that duty is now discharged by the district probate courts. He visits the clergy, and has his separate court for the punishment of offenders by spiritual cen- sures, and for hearing all other causes of ecclesiastical cognizance. ( Com. Dig. Eccle- siastical Persons; Bums Ecc. Law; 1 Lev. 192.) Brown. ARCHES COURT. See Court of Aechbs. ARCHIVES. 1. OriginaUy, an apartment, office, or special repository, within a library or other public institu- tion for the custody of books and writ- ings, wherein state papers, muniments of title, ancient records, charters, and evidences belonging to the government or pertaining to a community, city, or family, &c., are kept. 2. In its secondary meaning (and in this it is now most frequently met), the 6 ARGENTUM 82 ARMA word signifies the ■writings themselves thus preserved ; thus we say the archives of a college, of a monastery, &c. Arcta et salva custodia. Close and . safe custody. A direction for the keep- ing of a prisoner. AB&ENTUM. Silver. Thusar^en- tum album, literally white silver, stood for unstamped, uncoined silver, or bul- lion; also for silver coin worn smooth. Argentum. Dei, literally God's silver, stood for earnest money paid on closing a bargain. ARGUENDO. In arguing; in the course of argument. A term of fre- quent occurrence in the reports, used to denote an expression of opinion by the court or by counsel in reasoning or stat- ing the grounds of a decision, but not as a matter authoritatively decided; and which is not therefore entitled to weight as a precedent. The abbreviated form, arg. , is often used. Argumentum a simili valet in lege. An argument from a like case is of weight in law. The maxim is rather a rule of logic than a principle of jurLs- prudence. Argumentum ab auotoritate est fortissitnum in lege. An argument from authority is very strong in the law. This maxim expresses the rule of deci- sion under which the courts follow estab- lished precedents, — more briefly ex- pressed by the phrase, stare decisis, q. v. ; or otherwise, non quieta movere, q. v. Argumentum ab impossibili valet in lege. An argument from an impos- sibility is of weight in law. An argu- ment against a particular application or interpretation of a statute or instrument, on the ground that such application or interpretation involves an impossibility or absurdity, is entitled to consideration. This maxim is a principle of logic, rather than a mere legal rule of construction ; the argumentum ab impossibili being anal- ogous to a reductio ad absurdum. Argumentum ab inconvenienti plu- rimum valet in lege. An argument from inconvenience is of great weight in law. Arguments drawn from inconven- ience are entitled to great weight in doubtful cases. The operation of the maxim is restricted to such cases. Thus, if a deed contain equivocal expressions, and great inconvenience must follow from one construction, the inference is that such construction is not according to the true intention of the grantor. But where there is no equivocal expression in the instrument, and the words have but one plain meaning, an argumentum ab inconvenienti proves only want of fore- sight in the grantor, which is not a ground for the adoption of a different construction by the courts. So, in the interpretation of the law, if there be any doubt as to its meaning, the courts will consider what may be the good or bad effects of their decision. But, if the law is clear, inconveniences afford no argument of weight with the courts ; the legislature alone can remedy them. So, where a statute is impera- tive, reasoning ab inconvenienti cannot prevail. Where any great inconvenience would result from a particular construc- tion, the courts will be warranted in looking for another interpretation, but will not strain the language of the act. Broom. Max. 185. Argumentum a divisione est fortis- simum in lege. An argument from division is of the greatest force in law. An argument drawn from the consider- ation of the subject in separate parts, and the application to the whole subject of the principle found to control all the parts, is entitled to great weight. ARISTOCRACY. A form of govern- ment which is lodged. in a council com- posed of select members or nobles, without a monarch, and exclusively of the people ; also, a privileged class of the persons or political party in the state. {Pake's Pdit. Phi; Brougham's PoKt. Phi.) Wharton. ARMA. Arms. 1. Weapons, wheth- er offensive or defensive; implements of attack, or protection against attack. 2. Arms or cognizances of families; coat armor. Arma in armatos sumere jura sin- unt. The laws permit the taking arms against the armed. It is lawful for one unlawfully attacked, to repel force by force. Where a person attempts by violence to dispossess another of a thing lawfully in the possession of the latter, the possessor may use force to maintain his possession. But after he has been deprived of the possessioii, he cannot resort to violence to recover it. ARMIGER 83 ARMS ARMIGER. One who bears arms; the attendant of a knight, who waited upon him in time of war, and bore his armor or shield ; an esquire. ARMORIAL BEARINGS. Devices depicted on a ground representing a shield, and indicating the noble or gen- tle descent of the wearer. They are of English origin and use, and derived from the times when the shield of the knight or warrior customarily bore in- scriptions showing his birth and family connections. ARMS. I. Weapons ; commonly used to signify aggressive weapons, or instru- ments of attack. The constitution of the United States, amend, art. 2, declares that, "a well- regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." This provision has given rise to some question as to what descriptions of weapons are included. The constitutional right to keep and bear arms does not extend to carrying bowie knives, fire-arms, &c., concealed upon the person ; or prohibit legislative regulations of the manner in which arms may be car- ried. State V. Reid, 1 Ala. 612. The constitutional provision means such weapons as are used for the purposes of war, and does not include weapons not used in civilized warfare ; small pistols, for ex- ample. Fife w. State, 31 Ark. 455. It does not extend to carrying unusual and dangerous weapons in such a manner as will naturally terrify peaceable people among whom the bearer goes. State v. Huntley, 3 Ired. L. 418. It does not mean the right to bear weap- ons ordinarily or commonly, for individual defence ; but has reference to the right to bear arms for the defence of the communi- ty against invasion or oppression. The cit- izen has, at all times, the right to keep arms of modern warfare, if done without danger to others, and for purposes of train- ing and efficiency in their use. The use of such arms may be restricted as to manner, time, or place, — due regard being had to the right to keep and bear, for the constitutional purpose, — but cannot be prohibited. The right to keep or bear other arms not pro- tected by the constitution maybe absolutely prohibited. Andrews w. State, 3 Ueisk. 165. The constitutional provision does not forbid an act of^a state legislature, provid- ' ing that a homicide, which would other- wise be manslaughter, shall, if committed with a bowie knife or dagger, be deemed murder, and punished as such. It secures the right to carry a bowie-knife for lawful defence ; but as that weapon is peculiarly destructive, the legislature has the power to affix an increased penalty to any unlawful homicide committed by means of it, provid- ed, always, that the law is so framed as to operate as a caution to the unlawful em- ployment of the weapon, and not as an ab- solute prohibition on its use. Cockrum v. State, 24 Tex. 394. A statute regulating the carrying of pis- tols, dirks, and certain other deadly weap- ons, is not repugnant to the constitutional right to keep and bear arms. The " arms " referred to in the second amendment to the United States constitution are the arms of a militiaman or soldier, and they do not comprise dirks, bowie knives, &c. English V. State, 35 Tex. 493. Armour or arms include any thing that a man wears for his defence, or takes into his hands for that purpose, or uses in his wrath to cast at another, or to strike him with. The terms do not, in law, signify simply a sword, shield, helmet, or such like ; but extend also to stones and other missiles used for purposes of defence or warfare. { Crompt. Just. 65 ; Cowel.) Holthouse. 2. Arms, or coat of arms, signifies irir signia, i. e., ensigns of honor, such as were formerly assumed by soldiers of fortune, and painted on their shields to distinguish them ; or nearly the same as Armorial Bearings, q. v. Mackenzie defines arms to be " marks of hereditary honor, given or authorized by some supreme power, to gratify the bearer, or distinguish families. . Historically, ar- morial bearings seem to have been, origi- nally, the distinctive marks, badges, or de- vices whereby warriors, clad in armour, were recognized. Bell. The original of "arms" was to distin- guish commanders in war ; for, the ancient defensive armour being a coat of mail which covered the person, the individual could not be distinguished, and therefore a certain badge was painted on the shield, which was called arms. Jacob. For description of the arms of the United States, see resolution of congress of June, 20, 1782. What is meant by the arms of a state, see Kirksey v. State, 7 Port. 529. Arm of the sea. An arm of the sea is considered as extending as far into the in- terior of a country as the water of fresli rivers is propelled backwards by the in gress of the tide. Ang. Tidew. 73. Long Island Sound is an arm of the sea, within the common-law acceptation of the term.being navigable tide- water ; and is more specifically an arm of the sea than mere rivers, bays, or inlets, because, in addition to its tide-water and navigable character, it is without the territorial limits of any coun- ty. The Martha Anne, Olc. 18. Armed vessel To constitute an ene- my vessel an armed vessel within an act giving a bounty for the destruction of armed vessels, she need not have any par- ARMY 84 ARREST ticular or specific armament. A vessel which belonged to the British nary, and was used for hostile purposes, and was armed with muskets, pikes, &c., was held an armed vessel within such an act. Par- lin V. United States, 1 Ct. of CI. 174. Com- pare Murray ». The Charming Betsey, 2 Cranch, 84. ARMY. The organized military forces of a nation; the soldiers under employ of a government, for land service, con- sidered collectively. Army, in its most general sense, might be taken to include all the organized and armed power of the nation; its fighting forces, whether operating on sea or land, or both. But, as generally used in the acts of Congress, it does not include the naval forces or the marine corps. Ee Bailey, 2 Sawyer, 200. ARPEN; ARPENT. A measure for land, nearly corresponding to the Eng- lish acre. The word, in Latin forms, occurs in ancient English law and books ; particularly Domesday Book. It is said I to have been in use in France, but with- out uniformity as to the amount desig- nated by it, in the different provinces. It is employed in Louisiana convey- ancing; but in some instances appears used as . if it were originally a linear measure. See 6 Pet. 763*; 4 Hall's Am. Law J. 518; 12 'ffoM). 435. It is an acre or furlong of ground ; and, according to the old French account in Domesday Book, one hundred perches make an arpent. The most ordinary acre, called I'arpent de France, is one hundred perches square ; but some account it but half an acre. Jacob. Formerly a portion of land, in France, ordinarily containing one hundred square rods, or perches, each of 18 feet, or 900 square toises, equal to 4,088 square yards, or nearly five-sixths of an English acre. This is the arpent of Paris. The woodland arpent contains 6,108 square yards, or about 1 acre, 1 rood, 1 perch, English (Eavies and Peck). Webster. A portion of land in France ; usually 100 square rods or perches, each of 18 feet. The arpent is about one-seventh less than the English acre. Fleming ^ T. ARPENT ATOR, a measurer or sur- veyor of land. Cornel ; Jacob. ARRAIGN. To bring one accused of crime before the court, to stand trial upon the merits of the charge. Arraign- ment: the act or proceeding of calling a prisoner into court, to stand his trial upon an indictment. For the etymology, see Burrill. *'* The arraignment of a prisoner consists of three parts : Calling him to the bar, and, by holding up his hand or otherwise, mak- ing it appear that he is the party indicted ; but holding up the hand is a mere ceremony, and is frequently dispensed with, it only be- ing necessary for the prisoner to admit that he is the person indicted. Reading the in- dictment to him, distinctly, in EngSsh, that he may fully understand the charge. De- manding whether he is guilty or not guilty, and entering his plea ; and then demanding how he will be tried, the common answer to which is, " By God and my country." Wharton. Arraignment does not include the plea. The arraignment is the act of the court; the plea is the act of the accused. White- head V. Commonwealth, 19 Gratt. 640 ; Jackson v. Commonwealth, Id. 656. A record which shows that a prisoner, after having been furnished with a copy of the indictment, appeared in court, offered to waive arraignment, and tendered a plea of not guilty, which was entered, shows all the requisites of a valid arraignment. It shows that the prisoner was identified ; that he was fully imformed of the contents of the indictment ; and that he understood he was asked by implication whether he was guilty or not guilty, and answered in the negative. Goodin v. State, 16 Ohio St. 344. ARRAS. In Spanish law, signifies a donation which a husband makes to his wife, on account of the marriage, either corresponding to or reciprocating the dowry which she brings to him, or gra- tuitously; which latter is called sponsa- litia largitas. ARRAY, V. To rank or set in order. Array, n.: a body of persons set in order, and mentioned collectively; usu- ally applied to the persons summoned to form a jury. To challenge the array, as applied to juries, means to raise an objection which applies to the entire panel, such as that the sheriff who sum- moned them was partial or disqualified; as distinguished from an objection to individual jurymen, which is a challenge to the polls, i.e. heads. ARREARS. Money which remains unpaid after it has become due ; arrear- ages. It is generally used of a portion 'p or balance which remains due, when ' some part has been paid. ARREST, V. To take a person into legal custody. Arrest, n.: the act of taking a person into custody of the law. An arrest is the taking, seizing, or de- taining the person of anotlier, toucliing or putting hands upon him in the execution of AKREST 85 ARRIVE process, or any act indicating an intention to arrest. United States v. Benner, Baidw. 234, 239. By arrest is to be understood to take the party into custody. To commit is tlie sep- arate and distinct act of carrying the party to prison, after having taken him into cus- tody by force of the execution. French «. Bancroft, 1 Mete. {Mass.) 502. No manual touching of the body or ac- tual force is necessary to constitute an arrest. It is sufficient if the party be within the power of the officer, and submit to the arrest. Gold v. Bissell, 1 Wend. 210 ; Huntington v. Btaisdell,2 A^. H. 318 j Hunt, ington V. Schultz, Harp. 453 ; United States V. Benner, 1 Baldw. 239; Field v. Ireland, 21 Ala. 240 ; Emery v. Chesley, 18 N. H. 198 ; Jones v. Jones, 13 Ired. L. 448. An arrest is a restraint of the person; a taking the party into actual custody. Hart I). Flyn, 8 Dana, 190; Lawson v, Buzinesy 3 aarr. 416. The arrest of an offender, and the retak- ing him on fresh pursuit after an escape, constitute but one effective arrest. Cooper V. Adams, 2 Blackf. 294. Where an officer notified a party that he came to arrest him under a warrant, and the party submitted, and the officer accom- panied him home, remained there all night, and took him before a magistrate the next day, it was held that this was an arrest, although the party was not actually de- prived of liberty, nor personally guarded by the officer. Courtoy v. Dozler, 20 Ga. 869. The delivery to the sheriff of a ca. sa, against a prisoner in his custody, who had been admitted to the limits, is not, ipso facto et eo instanti, an arrest, so as to place the defendant in custody on the execution, and render the sheriff liable for an escape. Tracy v. Whipple, 8 Johns. 379. Arrest of judgment. A species of motion, familiarly known in courts pro- ceeding according to the common law, for reviewing proceeiiings upon which the successful party claims a judgment,' and, if error is found, forbidding entry of judgment. ARRESTMENT. In Scotch law: 1. A process for seizing and detaining a criminal's person; like our arrest. 2. A process for securing movables in the hands of the possessor, until the property in them can be determined. 3. A process allowed to creditors for securing movables of a debtor in the possession of a third person, or debts due from a third person to the debtor, and holding them to make satisfaction of the creditor's demand; analogous to attachment or garnishment in many of the United States. In this proceeding, the creditor is termed the arrester, and the third person is called the arrestee; analogous to garnishee. ARRIVE. The words arrive and enter are not always synonymous ; there certainly may be an arrival without an actual entry, or attempt to enter. United States v. An Open Boat and Lading, 6 Mas. 120, 132. See also The Patriot, 1 Brock. 407, 411. A vessel has not arrived till she drops her anchor, or is moored. Gray v. Gardner, .17 Mass. 188. A vessel insured until her arrival at a certain port is protected by the policy un- til she reaches the spot in that port where it is intended to discharge her cargo, and which is the usual place of discharge. But if she is destined to one or more places for the delivery of cargo, and delivery or dis- charge of a portion of her cargo is neces- sary, not by reason of her having reached any destined place of delivery, but as a necessary and usual nautical measure to enable her to reach such usual and destined place of delivery, she cannot properly be considered as having arrived at the usual and customary place of discharge, when she is at anchor for the purpose only of using such means as will better enable her to reach it. If she cannot get to the destined and usual place of discharge in the port, because she is too deep, and must be lightened to get there, and, to aid in prosecuting the voyage, cargo is thrown overboard or put into light- ers, such discharge does not make that the place of arrival : it is only a stopping-place in the voyage. Simpson v. Pacific Mut. Ins. Co., 1 Holmes, 136. Arrival, when occurring in the acts of congress relating to revenue and navigation, should be construed according to its com- mon acceptation, except w.here the context shows a clear intention to use it in a more limited sense. Parsons v. Hunter, 2 Sumn. 419, 42.3. And see Levy v. McCartee, 6 Pet. 102. A mere touching at port for advices, or to ascertain the state of the market, or being driven in by an adverse wind, and sailing again so soon as it changes, is not an arrival, within those acts ; they contemplate an ar- rival for purposes of business requiring an entry and clearance, and a stay at port so long as to require some of the acts con- nected with the business. Harrison v. Vose, 9 How. 372, 378. See also United States V. Shackford, 5 Mas. 445, 447; Parsons v. Hunter, 2 A'umn. 419; 9 Op. Att.-Gen. 256; 6 Id. 163. Passing through the waters of a river which constitutes the boundary between the United States and a foreign nation, for the purpose of proceeding to a port within such foreign territory, is not an arrival in the limits of the United States. The Apol- lon, 9 Wheat. 362. When an American vessel enters a for- eign port for the purposes of trade, to de- liver or take in the whole or part of her ARROGATION AESON cargo, or when she remains for so long a time that by the laws of the country she is compelled to enter at the custom-house, she must he deemed to have arrived at such port. 9 Op. Att.-Gen. 256. ARROGATION. A civil-law term for the adoption of a person who was already of fuU age. Arsae et pensatse. Burnt and weighed. A term formerly applied to money tested or assayed by fire and by weighing. It occurs in the plural form, qualifying the word librm, pounds ; and marks the distinction between money so tested and ordinary coin, termed argentum album, q. v. ARSON. Properly, the malicious burning of another's house. 2 Bisli. Cr. L. § 8. This was distingfuished, early in the development of the com- mon law, as an aggravated offence, owing to the peril to human life which it involved, and was deemed a felony. To constitute the crime at the common law, the building involved must be a habitation or dwelling; for the protec- tion of human life was the chief gi-ound of specially distinguishing the offence. Yet it must be the property of another person, at least in some sense, or for occupation; for the burning of a build- ing which was unqualifiedly one's own was deemed to partake of an exercise of the right of property too much to admit of its being pronounced felony. There must be a burning, — some actual de- struction of the woodwork of the build- ing by fire; though it might be very- slight, and extinguished before extensive damage, or actual peril to inmates. And there must be an evil intent, — that gen- eral malice, at least, which is a neces- sary element in crime ; though not necessarily an intent to produce death of the inmates ; nor need death be the result. The general definition of the word, above indicated, has been modified in many of the states, by statutes which aim to state with precision what shall be punishable as arson within the jurisdiction. Several of these include buildings somewhat removed from the character of dwellings, and other kinds of property which were not the subject of arson at common law. And some of them divide the offence into degrees, being guided, in so doing, largely by the idea of punishing with the greater severity those burnings which involve the greater danger to life. Upon the other hand, in other jurisdictions, stat- utes have been passed imposing punish- ment for wilful and malicious burning of many descriptions of property not the subject of arson at common law, without extending that name to include them. Hence the same criminal act of burning — the burning one's own house, to the danger of the interests of other persons; the burning a vessel, a shop, storehouse, or barn — may be punishable in several states, and perhaps may be subject to the same punishment, yet be recognized as arson in some only, while in others it is not within the term. Thus, by 2 N. Y. Kev. Stat. 657, arson is defined, for that state, and distin- guished in four degrees. Arson in the first degree consists in wilfully burn- ing in the night-time a dwelling-house in which there shall be, at the time, some human being. Arson in the second degree comprises wilfully burning an inhabited dwelling- house in the daytime, which, if done in the night, would be arson in the first degree; also, wilfully burning in the night-time any shop, warehouse, or other building not the subject of arson in the first degree, but adjoining to or within the curtilage of any inhabited dwelling- house, so that such house shall be en- dangered. Arson in the third degree includes wilfully burning in the daytime any shop, warehouse, or other building, which, if committed in the night-time, would be arson in the second degree: also, burning in the night-time the house of another not the subject of ar- son in the first or second degree; any house of public worship, or any school- house; any public building, &c., or any building in which shall be deposited the papers of any public officer; or any barn or grist-mill, or manufactory, or fulling- mill, or ship or vessel: also, wilfully burning insured property, with intent to prejudice the insurer: also, wiKully burning in the night-time any store or warehouse not adjoining to or within the curtilage of any inhabited dwelling- ARSURA 87 ARTICLE house, 80 that such house shall not be endangered by such firing. Arson in the fourth degree includes wilfully burning in the daytime any dwelling-house or building, ship or ves- sel, which, if committed in the night- time, would be arson in the third de- gree: also, wiKuUy burning in the day or night time any saw-mill, any cai-d- ing-machine, or building containing the same, or any building which, completed, might be the subject of arson in either degi'ee, while in the process of erection or construction ; or any stack of grain of any kind, or any stack of hay, or any wood, boards, timber, or other lumber piled or yarded for sale, not being the property of the person charged; any toU- bridge, or any other public bridge: also, burning in the day or night any stand- ing crop of grain, or any nursery or orchard belonging to another, or the woods in any town, or grass or herbage growing on any marshes or other lands not belonging to the person charged. These definitions, it will be seen, bring within the term arson, in some one of its degrees, almost every act of burning property which can require criminal punishment. Elsewhere, the same result, in substance, has been reached, without enlarging the mean- ing of arson, by imposing a punishment upon the offence of wilfully and mali- ciously burning property of the kind specified, whatever the things desired to bring within the scope of the penalty may be. ARSURA. Burning. The name of the ancient trial or assay of coin by fire. Thus, tot libras ad arsuram, — so many pounds according to the test by fire, — signified pounds of tested and approved money. Cowel. ART. The patent laws allow the issuance of a patent to the inventor or discoverer of any new and useful art, &c. , and this has given rise to some dis- cussion upon the meaning of the word art in this connection. Mr. Curtis ex- plains that the word is included in the statute, in order to embrace within the patent laws those inventions where the particular machinery or apparatus, or the particular substances employed, woiild not constitute the discovery, so much as a newly invented mode or pro- cess of applying them, in respect to the order or position or relations in which they are used. The term embraces those inventions where the particular appara- tus or materials employed may not be the essence of the discovery, but that essence consists in using apparatus or materials in new processes, methods, or relations, so as to constitute a new mode of attaining an old result ; ov a mode of attaining a new result in a particular department of industry, which result may not itself be any new ma- chine, manufacture, or composition of matter; or, finally, an entirely new pro- cess of making or doing something which has not been done before by any process. Curt. Pat. § 9. A process, eo nomine, is not the subject of a patent under our laws, but it is in- cluded under the general term " useful arts ; " and an art may require one or more processes or machines in order to produce a certain result or manner. Corning v. Burden, 15 How. 252, 268. ART AND PART. A phrase used in Scotch law; also, says Jacob, "in the north of England," signifying that a person shared in the planning and in the execution of a crime: was both an accessory before the fact, and an aider and abettor. Art implies advice or counsel towards the perpetration of the offence ; part signifies the actual share taken in its execution. But the phrase does not necessarily import both descrip- tions of guilt; for it is said that one may become art and part, either by giv- ing a warrant or mandate to commit the crime, or by giving counsel or advice to the criminal how to conduct himseK in it, or by his assistance in the execu- tion of it. Ersk. Inst. ; Bell. ARTICLE. 1. Originally, a distinct part or portion; one of several things presented as connected or forming a whole; one of a set; either of the con- stituents or members articulated in one corpus. Particularly, in legal phrase- ology, one of many connected proposi- tions or paragraphs forming a complete document. Hence the expression rela^ tive to pleading, to articulately propound ; i.e., to set forth in formal, distinct prop- ositions. Article is a word of separation, to indi- ARTICLE 88 ARTICLE vidualize and distinguish some particular thing from the general thing or whole, of which it forms a part ; as an article in an agreement, an article of faith, an article of a newspaper, or an article of merchandise. The original or radical Greek word means to join or to fit to, as a part ; and only very recently has it been applied to denote ma- terial or corporeal things, such as goods or physical property, and then only in the sense of something that is separate and individual in itself ; as in the expressions, " salt is a necessary article," or " a hammer is a useful article." Wetzell v. Dinsmore, 4 Daly, 195. Whether article, in a printed notice, given by a carrier on taking charge of travellers' baggage, that he will not be lia- ble for more than a sum named upon each article forwarded, means each separate package, trunk, valise, bag, &c., or each distinct thing, piece of clothing, ornament, book, &c., contained in a package, trunk, &c., see Wetzell v. Dinsmore, 4 Daly, 195 ; Hopkins v. Westcott, 6 Blatchf. 64. Three cases of pills, each case containing one gross, were delivered to a carrier for transportation, under a receipt limiting re- covery for loss of any article forwarded to $50. The three were each separately ad- dressed to the consignee, and were done up in one package, which was again addressed. Held, that ihe " article " to which the valu- ation applied was the whole package, in its entirety. Wetzell v. Dinsmore, 64 N. Y. 496. ¥oT the meaning of articles, in acts impos- ing taxes, see Wells v. Shook, 8 Blatchf. 254. 2. From the employment of aaticle, as a name of t]ie separate paragraphs of a document, has arisen a usage of apply- ing articles (plu.') to several kinds of documents, consisting of distinct propo- sitions connected; such as a libel or complaint in the ecclesiastical courts. Articles of agreement. Through- out the United States, the term articles of agreement means much the same as agreement in writing; being any docu- ment which sets forth distinctly the sev- eral engagements and considerations which form parts of either of the more complex contracts arising in affairs. In England, it seems to be applied some- what more precisely to a preliminary memorandum, drawn up and signed, of the clauses, stipulations, and conditions to be embodied in a deed which the par- ties have agreed to make, and which is to be drawn up and executed in future, when it will supersede the articles. Such articles are usually entered into for the purchase and sale of lands, for the taking and granting of leases, and for making mortgages and settlements on marriage. Articles of association, in the law of corporations, signifies an instrument common in joint-stock associations and corporations formed under general acts, which creates the corporate union be- tween the members, and prescribes the corporate objects and form of organiza- tion. This instrument is distinguished from charter, in that the latter emanates from the sovereign power ; and from by- laws, in that they are the acts of a cor- poration already in existence. Articles of the clergy. Ancient English statutes, containing certain ar- ticles relating to the church and clergy, and causes ecclesiastical. Articles of confederation. The name given to the instrument embody- ing the compact for government, made between the thirteen original states of the Union, before the adoption of the constitution. It was adopted and took effect March 1, 1781, and continued in force until superseded by the constitu- tion, on the fii'st Wednesday of March, 1789. Articles of faith, or of religion. A system of propositions of religious truth, commonly called the Thirty-nine Arti- cles, drawn up by the convocation in 1562, and confirmed by James I. For- mer English laws required a subscription to these articles from candidates for office or ecclesiastical preferment, or for vari- ous positions of trust, or academical ap- pointments and degrees, very generally; but the requirement has, by modem legislation, been relaxed. Articles of impeachment. The formal statement of the charges against a public officer, put forward as the basis of proceedings to remove him, is called the articles of impeachment. These articles are prepared and adopt- ed in the more popular branch of the leg- islative body, the commons in England, or house of representatives, assembly, &c. , in America ; and submitted to and tried by the other, the lords or senate. Articles of the uavy. A system of rules prescribed by act of parliament for the government of the English navy; also, in the United States, there are articles for the government of the navy, ARTICULATE 89 ASPORTATION comprised in chapter 10 of U. S. Rev. Stat. tit. XV. Articles of partnership. This phrase is in very frequent use to designate the formal agreement whereby a partner- ship is formed, and the rights and du- ties of the members of the firm are prescribed. The instrument embodies all necessary stipulations governing the commencement and duration of the part- nership, the nature of the business, and place of carrying it on, the firm name, the capital to be contributed, and other obligations assumed by the members, their respective shares in profits or losses, the mode of conducting the business, and the duties of each partner therein, the mode of winding up the firm and dividing assets at the close, and all other matters likely to be drawn in question. Articles of the peace. A species of complaint allowed to be exhibited by one who fears that another is about to commit an unlawful injury to complain- ant's person or property, the object be- ing to compel the accused to give secur- ity that he will refrain from the act threatened, or from any breach of the peace. Such security the court or magis- trate, upon due oath to the facts making put a proper case, may require. Articles of -war. The name of a system of rules, established by authority of law, for the government of the army and navy, in many matters of detail. These rules are known by this name, both in England and in the United States. The articles of war of the United States are contained in chapter 5 of U. S. Rev. Stat. tit. xiv. ARTICULATE ADJUDICATION. A term used in Scotch law to describe a form of judgment used where there are more debts than one due (;o the ad- judging creditor. In such cases, it is usual to accumulate each debt by itself, so that in case of an error in ascertaining or calculating one of the debts, the error may not reach any other debt. ARTIFICIAL PERSON. A com- pany to which the law has given exist- ence as a distinct legal entity ; a corpo- ration. Persons are spoken of as nat- ural, or individuals existing by natui-e; and artificial, those which are created by law. Articled clerk. The English term for a clerk under articles of agreement analogous to an apprenticeship, by which he is bound to serve in the office of a solicitor in consideration of being in- structed in the profession. No one Bolieltor may hare more than two articled clerks at any one time but a firm may have two to each partner. Brown. ARTS. The •xpressions useful arts and fine arts have a technical use in j^he patent and copyright laws. Webster defines art in this use as signifying: a, system of rules serving to facilitate the performance of certain actions; and says that arts are divided into the use- ful, otherwise called the mechanic or in- dustrial arts, or trades, being those in which the hands and body are more concerned than the mind, such as manu- factures; and the fine arts, otherwise called the liberal, or polite arts, being those in which the mind or imagination is chiefiy concerned, as poetry, music, and painting. Worcester defines arts as : the application of knowledge or skill to effect a desired purpose; practical skill as directed by theory or science. Fine arts. Under U. S. Rev. Stat. § 4952, copyi-ight may be secured for mod- els and designs intended to be perfected as works of the fine arts. This term, as construed in the office of the'librarian of congress is limited to painting and sculp- ture. Protection for designs, prints and labels for manufactured articles, devices for advertisements, medals, ornaments, regalia, utensils, emblems, earthenware, &c. , is to be sought at the patent office. Lost arts. Centuries ago discoveries were made in certain arts, the fruits of which have come down to us, but the means by which the work was accom- plished are now unknown ; the knowledge has been lost for ages. Yet it will hardly he doubted that if any one now discovered an art thus lost he would be entitled to a patent. Gaylor v. Wilder, 10 How. 477. Useful arts. See Akt. ASCENDANT. Has two senses; in a broader, it includes persons related or con- nected in the ascending line, by consan- guinity or affinity; in a more restricted sense, it includes only those related by con- sanguinity. Bernard v. Vignaud, 10 Mart. (La.) 482, 561. ASPORTATION. A removal or carrying away of chattels. This, the carrying away, is an essential part of ASSAULT 90 ASSAULT the crime, though the slightest distance of removal is sufficient. ASSAULT. Any wilful and unlaw- ful attempt or offer, with force, to do a corporal injury to another. In explanation of the definition, it is to be observed: 1. That the attempt or offer must be wilful. An accidental or unintended demonstration of violence is not an assault. Some of the decisions, indeed, take the position, unqualifiedly, that to constitute assault the threatening acts must be animated by a purpose to hurt; and, if this purpose is disproved, there is no assault. But other cases seem to warrant a broader definition, and to sustain the view that acts wil- fully committed, which evince a purpose to do a personal injury, and which would do an injury if completed, or if not in- tercepted, may constitute an assault, not- withstanding the perpetrator did not intend to pursue them to the point of actual injury. Where an unequivocal purpose of violence is accompanied by an act which, if not stopped or diverted, wiU be followed by personal injury, it is an assault. State v. Malcolm, 8 Iowa, 413. And unless the latter view can be conceded to some extent, the cases hold- ing that the aiming a fire-arm which the accused knew, but the complainant did not know, was not loaded, is an assault, cannot be sustained. Of the three fol- lowing definitions, it will be seen that the first makes an actual intent to hurt, in the breast of the assailant, an essen- tial element; while the other two are satisfied by acts which evince such in- tent, coupled with ability. An assault is an ofEer or an attempt to do a corporal injury to another ; as by striking at him with the hand, or with a stick, or by shaking the fist at hira, or presenting a gun or other weapon within such distance as that a hurt might be given, or drawing a sword and brandishing it in a menacing manner : provided the act is done with in- tent to do some corporal hurt. United States V. Hand, 2 Wash. C. Ct. 435. 'An assault is an attempt, with force or violence, to do a corporal injury to another, and may consist of any act tending to such corporal injury, accompanied with such cir- cumstances as denote at the time an inten- tion, coupled with the present ability, of using actual violence against the person. Hays V. People, 1 EOl, 351. An assault is an attempt or offer, with force or violence, to do a corporal hurt to another, whether from, malice or wanton- ness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect. Tarver v. State, 43 Ala. 354. 2. We include the word unlawful in the definition, believing it to be a proper element ; that is, an offer or use of force, in the exercise of one's rights, or the performance of one's duty, is not properly an assault. It may, indeed, be urged that the act is an assault, but is justified by the right or duty ; and the distinction is, of course, purely verbal. But the proper use of the term seems to be to confixie it to unlawful conduct. Bouvier gives unlawful as a part of the meaning ; so does Finch (Law, 202) ; and it was held in United States v. Lunt, Sprague, 311 ; 8 Mo. L. Rep. N. s. 622, that, in an indictment for an assault with a dangerous weapon, the word assault carries with it an allega- tion of illegality. But many of the def- initions given omit unlawfully ; the three quoted above, and those by Black- stone and Hawkins, quoted below, for example; also the following : Assault is an attempt or offer, with force and violence, to do a corporal hurt to an- other; as by striking at him with or with- out a weapon. But no words whatsoever, be they ever so provoking, can amount to an assault. Jacob ; Wharton. 3. Assault, as popularly used, includes violence ; but, as a law term, it is limited to the attempt or offer to use, and does not include actual use of violence. The word occurs, perhaps, most frequently in the phrase assault and battery, in con- struing which the two nouns are to be carefully discriminated. Assault covers only the offer, the threat in action ; the actual use of force is embraced by bat- tery. In aU the ordinary cases of crim- inal violence, the two are combined, in fact, hence they have from the earliest times been combined in the name ; and assault and battery is in common use as designating what is to all ordinary in- tents a single offence. There may be, however, a punishable assault, vrithout any battery being involved; as where the intention is abandoned, or the at- tempt is frustrated, before actual use of violence; and in trespass for assault and battery, a defendant may be found guilty of the assault and not guilty of the bat- ASSAULT 91 ASSAULT tery. It seems safe to say that there can be no battei-y without a preliminary assault. The practical utility of using the double name is doubtful. Offences, generally, include an offer or attempt, as well as an actual commission; and why the two elements should be so care- fully discriminated in the name, in the case of battery, and not in other cases, is not obvious. It would seem that as- sault might be reserved for the offence of offering or attempting violence not followed by an actual use of it; and that battery alone was a sufficient, name for the unlawful use of violence, the prelim- inary attempt being treated as merged in the commission, as in other ofiences. But the employment of the phrase as- sault and battery is very general; while assault is, in popular language, often employed as including battery. The authorities, however, sustain the dis- tinction between the two. An assault is an offer to strike, beat, or commit an act of violence on the person of another, without actually doing it, or touch- ing his person. A battery is the touching or commission of any actual violence on the person of another, in a rude and angry man- ner. Johnson v. Tompkins, 1 Baldw. 571, 600; State v. Shields, 1 WestL. J. 118. An attempt or offer to beat another, with- out touching him : as if one lifts up his cane or his fist in a threatening manner at an- other, or strikes at him, but misses bim; this is an assault, insultus ; and though no actual suffering is proved, yet the party in- jured may have redress by action for dam- ages as a compensation for the injury. It is thus distinguished in law from a battery, which is the unlawful beating of another, and includes the least touching of another's person wilfully or in anger. Practically, however, the word assault is used to includ^ the battery. 3 Black. Cam. 120. An assault is an attempt or offer to do a corporal hurt to another, as by striking him, or presenting a gun at him at carrying dis- tance, or pointing a pitchfork at him which might reach him, or holding up one's fist at him, or doing any such like act in an angry, threatening manner ; and a battery is any injury whatsoever to the person of a man done in an angry, revengeful, rude, or inso- lent manner. An assault and battery is the combination of both offences. 1 Hawk. P. C. ch. 62, § 1. Under a statute which punishes assault and battery with intent to kill, an indic^ ment cannot be sustained for a mere assault with intent, &c.j there must be a battery also. United States w. Turley, 4 Cranch C. a. 334. 4. Some demonstration of force capar ble of injuring the person is essential : mere threats do not constitute assault, if unaccompanied by any offer or attempt to strike. Smith v. State, 39 Mis.. Smith, 181; or for which the inn- keeper is liable, Preseott v. Bruce, 2 Cin. 58 ; and so of an opera glass. Toledo, &c. R.R. Co. V. Hammond, 33 Ind. 379. A watch is a part of a traveller's bag- gage, and may properly be deposited in his trunk. Jones v. Voorhees, 10 Ohio, 145. Owners of a steamboat are not liable, for a watch worn by a passenger through the day and kept at hand at night, as being part of his baggage. Clark v. Bums, 118 Mcfss. 275. As between carrier and passenger, bag- gage does not include a gold watch and chain, of large value ; gold ornaments car- ried for presents ; or money. The Ionic, 5 Blotch/. 538 ; Nevins v. Bay State Steam- boat Co., 4 Bosw. 225. Linen cut into shirt bosoms is wearing apparel, for the loss of which, if carried as baggage by a passenger, a carrier is liable. Duffy V. Thompson, 4 E. D. Smith, 178. Valuable laces held baggage. FralofE v. N. Y. Central R. R. Co., 10 Blatchf. 16. Baggage includes the manuscript of a student, author, or professional man, car- ried in his trunk for purposes incidental to the studies or business on which he travels. Hopkins v. Westcott, 6 Blatchf. 64. Tools used by the plaintifE in his trade, and also a gun, carried in his trunk, are properly included under the term baggage, and recoverable as such. Davis v. Cayuga 6 Susquehanna R. R. Co., 10 How. Pr. 330. A carpenter took passage in a stage- coach to go a certain distance, and his trunk, containing some clothing and tools to the value of flf ty-five dollars, was lost. Held, that the stage proprietors were liable for all the contents of the trunk. Porter v. Hildebrand, 14 Pa. St. 129. Guns for sporting purposes, and a small quantity of clothing materials, may be in- cluded in the baggage of a passenger from Europe to New York, for which the carrier is responsible. Van Horn v. Kermit, 4 E. D. Smith, 453 ; Duffy v. Thompson, 4 Jd. 178. A common carrier of passengers is liable for the loss of a pocket-pistol and a pair of duelling-pistols. Woods v. Devin, 13 ill. 746. Carrier held liable for one pistol, not for two. Chicago, &c. R. E. Co. v. Collins, 56 III. 212. The phrase "goods and merchandise" has been long understood as designating only commodities bought and sold by mer- chants and traders ; while "baggage" is as clearly understood to relate only to the clothing and other conveniences which a traveller carries with him on his journey. Chamberlain v. Western Transportation Co., 45 Barb. 218. Merchandise not intended for personal use, carried by a traveller, is not part of his baggage for which a carrier of passen- gers is responsible. Collins v. Boston & Maine R. E. Co., 10 Cush. 506. A carrier is not liable for the loss of a box of jewelry belonging to a third person, put. up for sale as merchandise, although packed in a trunk. Deception may as easily be effected by imposing upon the carrier valuable merchandise, under the gujse of the owner's travelling baggage, as by a direct verbal misrepresentation. Richards v. Westcott, 2 Bosw. 589; Orange Co. Bank V. Brown, 9 Wend. 85. A trunk containing nothing but merchan- dise, is not baggage for the safety of which a carrier is liable. Pardee v. Drew, 25 Wend. 459. See Michigan, &e. E. E. Co. v. Oehm, 56 ///. 293. Silver-ware in a trunk is not baggage. Bell V. Drew, 4 E. D. Snath, 59. Baggage does not include a feather-bed which a passenger on an ocean steamship carries with her, but does not require for use on the voyage. Connolly v. Warren, 106 Mass. 146. Baggage does not include a dog, — espe- cially upon a railroad having a public reg- ulation that "live animals are allowed as baggagemen's perquisites." Cantliug o. Hannibal, &c. R. E. Co., 54 Mo. 385. BAIL, V. To undertake that a defend- ant will appear and submit to the juris- diction and judgment of the court. Bail, n. : persons who engage as sureties for a defendant that he -will appear when called in court and answer to its process. This is an important topic in common- law practice, connecting closely with arrest. A defendant being arrested, gives bail; that is, procures sureties who ■will undertake that he shall appear when called. On their executing a formal en- gagement to this effect, pursuant to the law of the jm-isdiction, the defendant is, in theory of law, delivered to the custody of (bailed to) his sureties ; but practically is allowed to go at large. Should the bail, i.e. the sureties, become distrustful that he will keep his engagement, they may surrender him to judicial custody. Bail, meaning now the sureties, are termed bail above, i.e. sureties who bind themselves either to satisfy the plaintiff BAIL 119 BAILMENT foi- his demand as recovered, with costs, or to see that defendant shall render himself to the proper person. Bail of this description have the authority of jailers to take the principal into their actual custody (even on Sunday), and to surrender him to prison. This power distinguishes them from mainpernors. Or bail are termed bail below; by which are meant sureties who enter into a bond conditioned that the defendant will appear at the court and day named in the process of arrest. Bail below, and bail above, are currently called, respectively, common bail, which expression means fictitious sureties, entered as matter of foi-m, and amounting only to an appear- ance by defendant, but involving no real security to the plaintiff ; and special bail, meaning real persons, who imdertake, re- sponsibly, for defendant's appearance. Bail is also employed in several phrases in the French law, denoting several kinds of contracts; for instance: Bail a cheptel: a contract for letting animals. Bail a ferine: a contract of letting lands. Bail k loyer: a contract of letting houses. Bail k rente: a contract which par- takes of the nature of the contract of sale, and that of the contract of lease; it is translative of property, and the rent is essentially redeemable. (Path. Bail a Rente, 1, 3.) Clark v. Christ's Church, 4 La. 286. BAIL COURT. An English court, auxiliary to the queen's bench. It hears and determines ordinary motions, and questions of pleading and practice ; and is otherwise known as the practice court. Brovm; Wharton. BAILIFF. Originally, a person put in charge of something; one to whom powers of custody' or care are in- trusted. Hence, 1. In early English law, a class of local magistrates. 2. A sheriff's deputy; one to whom a sheriff intrusts his prisoners for imme- diate safe-keeping. 3. A private person who has the care, custody, and Hianagement of lands or goods, for the benefit of their owner. In this sense the word is used in cases speaking of the action of account render, which is brought to compel an account- ing from a custodian of property, who is often termed bailiff. There are several kinds of bailiffs, whose offices and employments greatly differ from one another, yet they agree in that the keeping or protection of something belongs to them all. Ency. Land. Every county as divided into hundreds, within which, in ancient times, the people had justice administered to them by the several officers of every hundred, which were the bailiffs; but now the bailiff's name and office is grown into contempt, they being generally officers to serve writs, &c., within their liberties ; though chief mag- istrates in divers towns are called bailiffs. Of the ordinary bailiffs there are several sorts, viz.; bailiffs of liberties; sheriff's bailiffs ; bailiffs of lords of manors ; bailiffs of husbandry, &c. Bailiffs of liberties are those bailiffs who are appointed by every lord within his liberty. Bailiffs errant or itinerant, to go up and down the coimty to serve process, are out of use. Jacobt Bailiff usually signifies sheriffs' officers, who are either bailiffs of hundreds or special bailiffs. Bailiffs of hundreds are officers appointed over those respective dis- tricts, by the sheriffs, to collect fines therein, to summon juries, to attend the judges and justices at the assizes or quarter sessions, and also to execute writs and processes in the several hundreds. Special bailiffs are that lower class of persons employed by the sheriffs for the express purpose of serving writs, and making arrests and exe- cutions, &c. Those persons also who have the custody of the king's castles are called bailiffs, as the bailiff of Dover Castle. The chief magistrates of particular jurisdictions are also called bailiffs, as the bailiff of "Westminster for example. There are also bailiffs of courts baron, bailiffs of the forest, &c. [Cowel; Termes de la Ley.) Brown. BAILIWICK. The territory over which a sheriff or bailiff exercises juris- diction. BAILMENT. A contract whereby chattel property is delivered by one to another, upon an engagement that the latter shall do something with or to it, and afterwards return or account for it. Bail, V. : to deliver a thing to a person, upon his engagement to do some act to or with it; and then return or ac- count for it. Bailor, one who delivers, and bailee, one who receives, something, to perform some act in respect to it. Many definitions of bailment have been given; the idea involved is so com- plex and comprehensive, that it can BAILMENT 120 BAILMENT scarcely be expressed with accuracy in a single proposition. Bailment, according to Blackstone (2 Com. 465), 18 " a delivery of goods in trust upon a contract, expressed or Implied, tliat the trust shall be faithfully executed on the part of the bailee ; " to which Sir Wil- liam Jones adds, " and the goods redeliv- ered as soon as the time or use for which they ware hailed shall have elapsed or been performed." (Law of Bailm. 117.) Jacob. This definition has been adopted in suh- Btance by several writers. See Bell; 2 Kent, 558 ; Tondins. Bailment, from the French baUler, to de- liver, is a delivery of goods for some pur- pose, upon a contract, express or implied, that, after the purpose has been fulfilled, they shall be redelivered to the bailor, or otherwise dealt with, according to his direc- tions, or (as the case may be) kept till he reclaims them. 2 Steph. Com. 80. Black- stone's definition (quoted supra) does not point to the duty of redelivery or delivery over according to the directions of the bail- or, which seem to be usually involved in the idea of a bailment. Id. note m. Bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to con- form to the object or purpose of the trust. Story Bailm . S. Jones' decision has been criticised as de- fective because it does not include chattels delivered under such circumstances that a return of them is not contemplated ; as in the case of goods sent to a factor for sale, Yet it is doubted whether the term bail- ment is strictly applicable to goods thus entrusted to a factor. JSdw. Bailm. 33, 34. Bailment is a word of French origin, sig- nificant of the curtailed transfer, the deliv- ery or mere handing over, which is appro- priate to the transaction. Sclu>vler,Pers. Pr. 695. Chief Justice Bronson (in a dissenting opinion) declared the distinction between cases of bailment and of sale to be this : when the identical thing delivered, though in an altered form, is to be restored, the contract is one of bailment, and the title to the property is not changed; but where there is no obligation to restore the specific article, and the receiver is at liberty to re- turn another thing of equal value, he be- coming a debtor to make the return, and the title to the property being changed, the transaction is a sale. (7 Cow. 752, 756, note a ; 21 Wend. 83 ; 2 Barb. 520 ; 2 N. Y. 153 ; 3 Mas. 478 ; 1 Blackf. 353 ; 2 Kent, 589; Jones Bailm. 64, 102 ; Story Bailm. § 283, 439.) Mallory v. WiUis, 4 N. Y. 76. The test of a bailment is that the identi- cal thing is to be returned ; if another thing of equal value is to be returned, the trans- action is a sale. Marsh v. Titus, 6 Thomp. #0.29; 3 Hun, 550. Many of the definitions involve the idea of a return of the property, as a part of the bailee's engagement; and this seems well warranted by the scope of the duty of the bailee, as understood in former years. But, in modern times, many engagements which are understood to be bailments do not involve a return, except in a most remote and strained sense. Thus, a delivery of goods to a carrier is commonly considered a bail- ment; yet the carrier does not return them, except upon the fiction that a de- livery to the consignee operates as a re- turn to the consignor. It seems better to regard the idea of return as not be- ing an essential element in the defini- tion. Sir William Jones, following the princi- ples of the civil law, acknowledges five species : 1. Depositum, which is a naked bailment, without reward, of goods to be kept for the bailor. 2. Mandatum, or com- mission : when the mandatory undertakes, without recompense, to do some act about the thing bailed, or simply to carry them. 3. Commbdatum, or loan for use; when goods are bailed, without pay, to be used for a certain time by the bailee. 4. Pigno- ri acceptum ; when a thing is bailed by a debtor to his creditor in pledge, or as a se- curity for the debt. 5. iLocatum, or hiring ; which is always for a reward; and this bailment is either (1) locatio rei, by which the liirer gains the temporary use of the thing ; or (2) locatio operis Jaciendi, vrhen work and labor or care and pains are to be performed or bestowed on the thing delivered; or (3) locatio meris mercium vehendarum, when goods are bailed for the purpose of being carried from place to place, either to a pub- lic carrier, or to a private person. Jones Bailm. 36. Bailments are divisible into three kinds : 1. Those in which the trust is exclusively for the benefit of the bailor, or of a third person ; 2. Those in which the trust is ex- clusively for the benefit of the bailee ; 3. Those in which the trust is for the benefit of both parties, or of both or one of them and a third party. The first embraces de- posits and ma idates ; the second, gratuitous loans for use ; the third, pledges or pawns, and hiring and letting to hire. A deposit is a naked bailment of goods to be kept for the bailor without recompense; and to be returned when the bailor shall require it. A mandate is a bailment of goods without reward, to be carried from place to place, or to have some act performed about them. A loan for use, or commodatum, is a bailment of goods to be used by the bailee tempora- rily, or for a certain time, without reward. A pledge, or pawn, is a bailment of goods to a creditor as security for some debt or engagement. A hiring, or locatio-conductio, is a bailment always for a reward or com- pensation. Story Bailm. 4 BALLOT 121 BANK BALLOT. The paper embodying a vote ; the choice of an elector, expressed in writing or print. Is opposed to a rote ty words or signs, such as a vote by yeas and nays, by raising the hand, or by rising. A printed paper may be a ballot : writing with pen and ink is not essential. Opinion of the Justices, 7 Me. 414. A constitutional provision that elections shall be by ballot, means and requires that the voter shall be protected in absolute se- crecy, as to the vote which he casts. Wil- liams V. Stein, 38 Ind. 89. BAN ; BANK. A proclamation, or public notice; an edict, particularly one embodying a prohibition, excommunica- tion, or curse. Bans of matrimony. Public notice has long been required, by English stat- utes, to be given, by audible announce- ment in parish church or authorized public chapel, of any intended marriage. ' It involves an opportunity to any person to interpose an objection to the mar- riage ; which is called forbidding the bans. B ANGUS. A bench; a high seat. The original name of one of the English courts, afterwards termed communis ban- cus, the common bench, by way of dis- tinction from bancus regis, the king's bench, and known in later times as the court of common pleas. The term band narralores was used to designate advo- cates in this court. Bancus regis. The king's bench. The name of one of the English courts, which during its existence was the su- preme tribunal after parliament. It was so termed because in theory it was held and its proceedings were had coram ipso rege, — before the king himself ; and in ancient times the king in person sometimes sat in the court. James I., however, was not allowed to sit in banco regis for the purpose of deciding a cause or delivering an opinion, Lord Coke being at the time chief justice. The initial letters B. R. are frequently used in the old reports to designate the court. BANK. A bench. 1. The bench or seat occupied by judges. Hence, the seat of justice; a court. Particularly, the full court sitting for the determina- tion of questions of law, termed sitting in bank; as distinguished from one or more judges sitting to determine ques- tions of fact, generally with a jury, termed sitting at nisi prius. In this sense the word more frequently occurs in the form banc. 2. An establishment for the custody of money; or for the loaning and invest- ing of money; or for the issue, exchange, and circulation of money; or for more than one or all of these purposes. The term is applied to the incorporation or association authorized to perform such functions; to the body of directors or other officers authorized to manage its operations; and to the office or place where its business is conducted. Ac- cording to the functions exercised by them, as enumerated above, banks are classified as banks of deposit, of dis- count, and of circulation. Savings banks (q. v.) are banks for deposit and investment of money merely ; and all banks which receive money on deposit, to be repaid on demand or on notice, with or without interest, are hanks of deposit. Banks of discount loan or advance money on negotiable paper or other security, deducting, as discount, an allowance for interest. Banks of circulation issue their notes intended to circulate as money, which are termed bank-notes, or bank-bills. All these operations are, in general, performed by the same bank; and, in addition, the transmission of money by means of bills of exchange is largely engaged in. The word is generally limited in appli- cation to a corporate body, the term banker designating an individual en- gaged in the business of banking. The receiving of deposits by a chartered company, and loaning or investing the same for the benefit of depositors, is a business of banking. Banks, in the commercial sense, are of three kinds: 1. Of deposit; 2. Of discount; 3. Of circulation. It may be that all or any two of these functions are exercised by the same association ; but there are banks of deposit without author- ity to make discounts or issue a circulating medium. Thus an institution for receiving savings, though established for the encour- agement of thrift among laborers and oth- ers, and required by the charter to invest all moneys, and divide among depositors all the net income, without compensation to its managers, may be regarded as a bank ; and such an institution is " a bank or company engaged in the business of banking," within the purview of the United States internal revenue laws. Bank for Savings v. The BANK 122 BANK Collector, 3 Wall. 495. Compare State v. Louisiana Savings Co., 12 La. Ann. 668. Banks, in the commercial sense, are of three kinds : 1. Of deposit ; 2. Of discount ; 3. Of circulation. An institution exercising one only of these functions may be a bank in the strictest commercial sense. Oulton V. Savings Institution, 17 Watt. 109. The term " incorporated bank," in Mass. Gen. Stat. ch. 161, § 39, — punishing ah ofScer, &c., of any incorporated bank who fraudulently converts to his own use any money, &c., belonging to the bank or depos- ited therein, — includes banks chartered since the passage of that act as well as those then existing, and includes banking corporations organized under the laws of the United States and located in Massachu- setts, as well as like corporations created by the laws of the commonwealth. Com- monwealth V. Tenney, 97 Mass. 50. Banking powers consist in the right of issuing notes, making discounts, and receiv- ing deposits. N. Y. Firemen Ins. Co. v. Ely, 2 Cow. 678. A corporation whose charter, passed be- fore the existence of any restraining acts, provides that "it shall be lawful for them to employ all such surplus capital as may belong or accrue to said company in the purchase of public or other stock, or in any other moneyed transaction or operation not Inconsistent with the constitution and laws of this state, or of the United States, for the sole benefit of said company," pos- sesses banking powers ; and, even after the main object of their incorporaition has been accomplished, they may continue the bank- ing business. So held, where statutes passed subsequent to the charter recognized the corporation as a bank. People v. Manhat- tan Bank, 9 Wend. 351, 383. The name bank imports a corporation, and a statute referring to a hank by name may be deemed a legislative recognition of its corporate existence. State v. Helmes, 3 N.f.L. 764. Bank means an institution incorporated for banking purposes ; and does not, as used in Massachusetts, include offices of individuals or copartnerships doing business as private bankers. Way o. Butterworth, 106 Mass. 75. Bank includes banking institutions, whether owned by a natural person, a part- nership, or a joint-stock company. Re Leavenworth Sav. Bank, 14 Bankr. Reg. 92. The phrase " any other bank," as used m a bank charter, applies only to incorpo- rated banks. Campbell v. Farmers' Bank, 10 Bush, 182. The terms bank and banking institutions, as used in the legislation of Ohio, are con- fined to corporations authorized to issue bills or notes for circulation. Ohio Life Ins., &c. Co. V. Debott, 16 How. 416, 438. The terms bank or banker include any person, firm, or company having a place of business where credits are opened by the deposit or collection of money or currency subject to be paid or remitted upon draft, check, or order; or where money Is ad- vanced or loaned on stocks, bonds, bullion, bills of exchange, or promissory notes ; or where stocks, bonds, bullion, bills of ex- change, or promissory notes are received for discount, or for sale. Act of congress of July 13, 1866, § 9, 14 Stat, at L. 115. Bank-bUl ; bank-note. A promissory note, made and issued by a bank or banker under authority of law, payable on de- mand to the bearer. On account of the legal regulation of their issue, a certain credit is attached to bank-notes, and the readiness with which they pass from hand to hand, being payable to any holder on demand, makes them a convenient substi- tute for legal money; and they circulate as cash in ordinary business transactions. They are generally deemed a good tender, unless objected to. They are not, at com- mon law, subject to be taken on execu- tion; but this rule has been changed by statute in many of the United States, and they may be levied upon under an execu- tion ; but, usually, are not sold, being ap- plied upon the execution as cash. They differ from ordinary promissory notes only in the recognition of them by general con- sent, and by the law to some extent, as a substitute for and equivalent to legal money; in other respects they are governed by the rules applicable to promissory notes pay- able to bearer. Indorsement of them not being usual or proper, many questions arising as to rights of parties to other ne- gotiable paper have no application to bank-bills. Promissory notes issued by an individual in his own name, printed or embellished in the style usual in bank-notes, made payable at the subscriber's exchange and banking office, and countersigned by a "cashier," are not bank-notes within the meaning of a rule that notes in the similitude of au- thorized bank-notes issued by any other bank, to be circulated as money, are void. James v. Bogers, 23 Ind. 451. Unsigned sheets of paper, although duly engraved and adapted for bank-bills, are not bank-bills. Commonwealth v. Clancy, 7 Allen, 537. A note forged in the name of a bank, which promises to pay "out of the joint funds of the association," is within the statute forbidding the passing and intent to pass counterfeit notes. Knapp's Case, 6 CUy H. Rec. 18 ; and see United States v. Wmslow, 2 Cranch C. Ct. 47. The words bank-bill and bank-note, in their popular sense, are used synonymously. State V. Hays, 21 Ind. 176; Low v. People, 2 Park. Cr. 37. Bank-notes, bank-bills, and promissory notes, such as are issued by the directors of a bank incorporated by the legislature of Vermont, mean the same thing; so that the expression in a statute, " bank-bill or promissory note," is an evident tautology. State V. Wilkins, 17 Vt. 151. BANKER 123 BANKRUPTCY Bank-notes are not " goods and chattels," nor "money." United States v. Bowen, 2 Cranch C. Ct. 133. The terras bank-notes and current funds, when used in notes and obligations, import generally such as are convertible into gold and silver at par. Williams v. Arnis, 30 Tex. 37, 49. Bank money means that species of money called bank-notes ; and of that species the parties in this case meant that sort or va- riety called Mississippi bank-notes. Hopson V. Fountain, 5 Humph. 140. 3 . A slight acclivity or elevation of the land ; particularly the earth bordering on a river, canal, or other watercouj-se. The banks of a river are understood to be the earth which contains it in its ordi- nary state of high water; ou the Missis- sippi, where there are levees, the levees form the banks. (£a. Co&, art. 859.) Pulley V. Municipality No. 2, 18 La. 278 ; and see Stone V. Augusta, 46 Me. 127 ; Howard v. IngersoU, 13 How. 381, 416. " On the west bank " of a river, does not include military posts which are 92, 132, and 191'miles west of the river. Caldwell's Case, 19 Wall. 264. A grant bounding on " the bank " of a creek does not convey the land to the centre of the creek, but only to low-water mark. Halsey v. McCormick, 13 N.Y. 296. BANKER. A person, who deals in money ; a person engaged in the busi- ness of banking, as an individual or as a member of a copartnership. Where persons carrying on such business con- stitute a corporate body, the institution is termed a bank (j. «.), or a banking association. Banking, in its most enlarged significa- tion, includes the business of receiving de- posits, loaning money, and dealing in coin, bills of exchange, &c. And the banks created by the authority of law are those which, in addition to the ordinary business of banking common for all persons to engage in, make and issue their paper to circulate as money, which are termed banks of circulation. By a long course of legis- lation in Ohio, banking has acquired a re- stricted legal signification, applying only to those banks which exercise the functions of issuing paper money. And a statute relating to taxation of banks and bankers should be construed, not as including pri- vate dealers in deposits, exchange, and dis- counts, but as confined to incorporated institutions and incorporated associations clothed with power of issuing paper money. Exchange Bank of Columbus v. Hines, 3 Ohio St. 1, 3. The term banker includes all the busi- ness of a money-changer, and the term money-changer signifies a broker who deals in money and exchanges. A banker may be required to take out a license under a provision of a city charter which applies to money-changers. Hinckley v. Belleville, 43 m. 188. A dealer in capital ; an intermediate party between the borrower and lender. Curtis V. Leavitt, 15 N. Y. 9, 167. BANKRUPTCY. A system or branch of jm-isprudence, founded on positive law, devoted to ascertaining the insolvency of traders, collecting their assets for distribution among creditors, and giving to themselves, in proper cases, a discharge from indebtedness. Also, a condition of indebtedness or pecuniary embarrassment, which ex- poses or/ entitles a person to have his property taken for division among his creditors, and (in cases) to be dischai-ged from their claims. Bankrupt: a per- son who has been judicially ascertained to be, by law, entitled or subject to have his property taken for distribution among creditors, while he may receive discharge from their claims. Also, often, but loosely, applied to one who is un- questionably subject to such adjudica^ tion, though it has not yet been passed. The above definitions are framed upon the actual employment of the terms in American jurisprudence at the present day, rather than upon their ety- mology or original meanings. The relative force of the words bankruptcy and insolvency has been the subject of much discussion in the American courts, in oases involving a considera- tion of the powers of congress and of the states, over the status of embarrassed debtors. Were the language of the sub- ject to be framed anew, we should advise employing the term insolvency to signify the condition of being indebt- ed beyond the value of one's assets; and bankruptcy to signify an intention (either fraudulent or compelled by in- ability) not to pay indisputable debts, evidenced by some act which the law designates as sufficient proof of the in- tent to warrant a judicial distribu- tion of the estate. An insolvent law would then be a law under which a debtor might obtain relief, by way of dis- charge, from overwhelming indebted- ness, upon compliance with proper con- ditions as to proof of good faith in incurring the debts, and surrender of BANKRUPTCY 124 BANKRUPTCY all available assets, to be applied to- wards payment. And a bankrupt law would be a law under which a creditor might institute proceedings against a debtor, who, by an act of bankruptcy, had manifested an intent not to pay a conceded debt, to compel a surrender of all assets, and a judicial distribution of them, upon the condition of a just dis- charge of the debtor from indebtedness that might remaiu. But it is not prac- ticable to reconcile all the existing leg- islation as conforming to' this or to any systematic use of the two words : they have not been kept distinct in meaning. The power conferred upon congress by the constitution, to legislate upon the subject, is a power to establish "uniform laws on the subject of bankruptcy; " yet congress has unhesitatingly authorized proceedings of involuntary bankruptcy, and discharges of debtors, not traders, and at their own request; implying that the term bankruptcy fairly extends to these subjects. Bankruptcy was, under the act of con- gress of March 2, 1867, and amendatory act of June 22, 1874 (now repealed), incurred by, and might be predicated of, any person: Who departs from the state, &o., of which he is an inhabitant, with intent to defraud his creditors; Who, being absent, remains absent, with such intent; Who conceals himself, to avoid the service of legal process, &c. ; Who conceals or removes any of his property, to avoid its being attached, &o. ; Who makes any assignment, &c., of his estate, property, &c., with intent to delay, defraud, or hinder his creditors ; Who has been arrested and held in custody under process out of any court .where he resides or has property, founded upon a demand provable against a bank- rupt's estate, and for a sum exceeding one hundred dollars, such process remain- ing in force for a period of twenty days, or who has been actually imprisoned for more than twenty days in a civil action founded on contract for the sum of one hundred dollars or upward ; Who, being bankrupt or insolvent, or in contemplation of bankruptcy or insol- vency, makes any payment, gift, or other transfer of money or other property, &c., or confesses judgment, or procures his property to be taken on legal process, with intent to give a pi'ef erence to credi- tors, or to persons liable for him as in- dorsers, &c. , or with the intent to defeat or delay the operation of the bankrupt laws ; Who, being a bank, banker, broker, merchant, trader, manufacturer, or min- er, has fraudulently stopped payment, or has stopped or suspended and not re- sumed payment, within a period of forty days, of his commercial paper; Or who, being a bank or banker, fails for forty days to pay any depositor upon demand of payment lawfully made. The definition of bankrupt has varied at different periods of our legal history. A bankrupt may perhaps be defined generally as a person who, by reason of some act or circumstance indicating a failure to meet his UabUities, and called an act of bank- ruptcy, has been adjudicated a bankrupt by a court of competent jurisdiction for that purpose. Mozley $■ W. As to the distinction between bankrupt- cy and insolvency, it may be said that in- solvent laws operate at the instance of an imprisoned debtor; bankrupt laws, at the instance of a creditor. But the line of par- tition between bankrupt and insolvent laws is not so distinctly marked as to define what belongs exclusively to the one and not to the other class of laws. Sturges v. Crowninshield, 4 Whwt. 122. Insolvency means a simple inability to pay, as debts should become payable, whereby the debtor's business would be broken up ; bankruptcy means the particu- lar legal status, to be ascertained and de- clared by a judicial decree. Matter of Black, 2 Ben. 196. Bankruptcy does not consist in the pro- ceedings in court : it occurs in the course of a man's business. The proceedings are to ascertain whether or not he is a bank- rupt. Exp. Breneman, Crabbe, 456, 465. Bankruptcy is an inability to pay one's debts; as used in the constitution of the United States, it is synonymous with insol- vency, and not confined to traders. Many other definitions collected. Sackett v. An- dross, 6 Hill, 327 ; but see Kunzler ». Ko- haus, Id. 317, 319. The leading distinction between a bank- rupt law and an insolvent law, in the prop- er technical sense of the words, consists in the character of the persons upon whom it is designed to operate, — the former contem- plating as its objects bankrupts only, that is, traders of a certain description ; the lat- ter, insolvents in general, or persons unable to pay their debts. This has led to a marked separation between the two sys- tems, ia principle and in practice, which in England has always been carefully main- BANNERET 125 BAR tained, although in the United States it has of late been effectually disregarded. In further illustration of this distinction, it may be observed that a bankrupt law, in its proper sense, is a remedy intended pri- marily for the benefit of creditors ; it is set in motion at their instance, and operates upon the debtor against his wiU (in invitum), although in its result it effectually dis- charges him from his debts. An insolyent law, on the other hand, is chiefly intended for the benefit of the debtor, and is set in motion at his instance, though less effective as a discharge in its final result. lb. The only substantial difEerenee between a strictly bankrupt law and an insolvent law, lies in the circumstance that the for- mer afEords relief upon the application of the creditor, and the latter upon the applica- tipn of the debtor. In the general charac- ter of the remedy there is no difference, however much the modes by which the remedy may be administered may vary. Martin v. Berry, 37 Cal. 208, 222. Certain pro rata advances by the stock- holders of a manufacturing company were, by the vote of the company, to be allowed and paid as debts " if the company should become bankrupt and discontinue busi- ness." Held, to mean a bankruptcy in the legal sense, and not merely such financial embarrassment as obliged the company to discontinue business. Barr v. Bartram Manuf . Co., 41 Conn. 502. BANNERET. A name of dignity in England, denoting a degree next to 3. baron, and above a knight. Knighta banneret were made in the field by the ceremony of cutting off the point of the standard, and making it, as it were, a banner; this conferred a dignity ac- counted so honorable that they were al- lowed to display their arms in the royal army, as barons did, and might bear arms with supporters. It is not a title of nobility, and is now nearly if not quite extinct. The -word is sometimes spelled Baneret. BANNS. A proclamation of inten- tion to marry, which the law of Eng- land, and of some of the United States, requires should be made before the cere- mony, to afford opportunity for objec- tions. See Bak. BAR has two technical senses in ju- risprudence. 1. In pleading, any mat- ter which is a final defence to the ac- tion is called matter in bar, or a defence in bar, in distinction from an objection or defect which may be sup- plied, such as a misnomer or non-join- der of a party, after -which the suit can proceed. Thus, a plea which sets up an absolute or final defence is called a plea in bar; such pleas are payment, infan- cy, fraud, denial of having made the contract or committed the tort sued upon, &c. 2. From a practice, not very extensive in the United States, but said to be more distinct in England, of calling a space in a court-room inclosed by rails or other convenient barrier, and appro- priated tb advocates, "the bar of the court," there has arisen a use of the term bar to signify the members of the legal profession; those who are entitled to sit within the bar. So, admission to the franchise or office of attorney or counsellor is often styled admission to the bar; and proceedings in the presence of the court are said to take place at bar. The particular cause on argument is often spoken of as the case at bar, in distinction from causes pre- viously decided, and cited as precedents ; and, in criminal trials, the person ar- raigned is styled the prisoner at the bar. Bar, or barr, in,a legal sense, is a plea or peremptory exception of a defendant,- sufficient to destroy the plaintiff's action. And it is divided into bar to common in- tendment, and bar special ; bar temporary, and perpetual. Bar to a common intend- ment is an ordinary or general bar, which usually is a bar to the declaration of the ' plaintiff ; bar special is that which is more j than ordinary, and falls out upon some special circumstances of the fact, as to the •. State, 17 Tex. 615. BATTURE. a marine term, used to denote a bottom of sand, stone, or rock, mixed together, and rising toward the surface of the water: its etymology is from the word battre, to beat; because a batture is beaten by the water. Both as a technical word and in common par- lance it means an elevation of the bed of a river, under the surface of the water, since it rises towards it. It is, how- ever, sometimes used to denote a similar elevation of the bank when it has arisen above the surface of the water, or is as high as the land on the outside of the bank. Morgan v. Livingston, 6 Mart. {La.) 216. BAWDY-HOUSE. An abode or dwelling kept for the convenience and shelter of persons desiring unlawful sex- ual intercourse; a brothel; a house of iU-fame. Such a house is a common nuisance, and to maintain one is punishable by early English law, as weU as under statutes of Great Britain, and probably of all the states. To constitute a baw- dy-house such as is thus punishable, it need not be an entire building; keeping a single room for the general resort of •lewd women is enough, Reg. «. Pierson, 1 Salh. 382 ; 1 Ld. Raym. 1197 ; nor need it be kept for profit, State v. Bai- ley, 21 N. H. 343; but it must have ac- quired repute as a house of ill-fame, Caldwell ». State, 17 Conn. 467; and be the resort or abode of more than one woman of unchaste character. State v. Evans, 5 Ired. L. 603. BEACH, designates land washed by the sea and its waves ; is synonymous with shore. Littlefield v. Littlefield, 28 Me. 180. When used in reference to places near the sea, beach means the land between the lines of high water and low water, over which the tide ebbs and flows. Hodge v. Boothby, 48 Me. 68. Beach means the shore or strand. Cutts V. Hussey, 15 Me. 287. Beach, when used in reference to places anywhere in the vicinity of the sea, means the territory lying between the lines of high water and low water, over which the tide ebbs and flows. It is in this respect sy- nonymous with shore, strand, or flats. Doane v. Willcutt, 5 Gray, 328, 335. Beach generally denotes land between high and low water mark. East Hampton V. Kirk, 13 N. Y. Supreme Ct. 257 ; but not necessarily, Merwin b. Wheeler, 41 Conn. 14. BEACONAGE. Money paid as the expenses of maintaining a beacon, or signal-light. BEADLE. A parish jofficer in Eng- land, chosen by the vestry of the parish and charged with the duty of attending vestry meetings, notifying parishioners of time of holding them, assisting the constabulary in arrests of vagrants, and performing various services in the ad- ministration of the poor-laws. Beadle, or bedel, signifies a messenger or apparator of a court that cites men to ap- pear and answer ; also, an inferior officer of a parish or liberty. Bedelary : the same to a bedel as baliva, or bailiwick, is to a bailiff. [Cowd.) Mozky ^ W. BEARER. 1. This word is famil- iarly used in biUs of exchange, checks, and promissory notes where the maker designs that the money shall be payable to any person who may present the in- strument for payment. The words, or order, or bearer, and bearer, in notes, bills, and checks, are BEAST 132 BEFORE words of negotiability, and the use of either of them makes the paper negotia- ble, although impersonal words are used in place of naming a payee. Mechanics' Bank V. Straiten, 3 Keges, 365, 86 How. Pr. 190, and more fully, 5 Abh. Pr. n. a. 11. In respect to a note drawn, " Due to the bearer hereof, .£3, which I promise to pay T or order, on demand," it was held that the word bearer had reference to T as payee, and another person could not main- tain an action on the note without the in- dorsement of T. Cock V. Fellows, 1 Johns. 143. 2. In old English books, bearers is used to denote oppressors; persons who bore down upon or tyrannized orer others. Jacob. BEAST. A general designation of the four-footed land animals which are of use or value for work, food, or sport. In vernacular use, " beast " would be regarded as a broader term than " cat- tle " ; but it is not easy from American decisions t9 show any definite distinc- tion, in legal senses. See Cattle. The Mass. estray law. Gen. Stat. 185, makes provision for impounding swine, sheep, horses, asses, mules, goats, or neat cattle, naming all these in the first sec- tion, and then employs "beasts" as a comprehensive term in following pro- visions intended to apply to all ; while the different kinds are specifically men- tioned in provisions applying to them separately. Under Minn. Eev. Stat. ch. 101, § 31,— punishing the killing "horses, cattle, or other beasts," — it was held that the terra beasts (the statute being penal) must be strictly construed, and includes only do- mesticated animals of value. It evidently includes such animals as have an intrinsic value, in the same sense as there is value in horses, oxen, and cows. It may be intended to Include asses, mules, sheep, swine, and perhaps some other domesticated animals. But dogs are not embraced. Maliciously killing a dog is not punishable under the statute. United States v. Gideon, 1 Minn. 292, 296. Beasts of chase {fer. Allen, 39 How. Pr. 481. Bounty lands ; Bounty-land 'v^ar- rant. Bounty is usually offered in money; but not necessarily. Bounties for military services have, in the United States, sometimes been paid in portions of the public lands. Lands thus appro- priated are known as bounty lands, while the warrant given to the recipient to entitle him to enter is a bounty-land warrant. Bounty of Queen Anne, is a name given to a royal charter, which was con- firmed by 2 Anne, ch. 11, whereby all the revenue of first-fruits and tenths was vested in trustees, to form a perpetual fund for the augmentation of poor ecclesiastical Uvings. Wharton. BRANDING. A punishment, an- ciently quite common, but 'now almost everywhere disused, except to a limited extent, for military offences ; consisting in inflicting some mark upon the person of the offender, by burning with a hot iron. BRAWL. Is synonymous with tu- mult. The two words mean the same kind of disturbance to the public peace ; produced by the same class of agents, and can well be comprehended to define one and the same offence. State v. Per- kins, 42 N. S. 464. Brawling is quarrelling or chiding, or creating a disturbance, in a church or churchyard. (4 Bl. Com. 146 ; 4 Steph. Com. 253.) Mozkyi-W. BREACH. 1. A violation of duty or obligation is quite generally termed a breach; particularly in phrases like the following: Breach of close. Unlawfully enter- ing upon another person's land. Breach of covenant or of contract. A non-fulfilment of a covenant or con- tract, whether by commission or omis- sion. Breach of duty. The not executing an office, employment, or trust, in a lawful manner. Breach of the peace. A disturbance of the public peace. Breach of pound, or pound-breach. Taking by force, out of a pound, things lawfully impounded. Breach of prison, or prison-breach. The escape from arrest of a person law- fully arrested for a crime. Breach of privilege. An act or de- fault in violation of the privilege of either house of parliament, of congress, or of a state legislature; as, for instance, by false swearing before a committee, or by resisting the officers thereof in the execution of their duty. Breach of promise. Tiolation of a promise ; a phrase used especially with reference to the non-fulfilment of a promise to marry. Breach of trust. A violation' by a BREAK 164 BREAK trustee of the duty imposed upon him by the instrument creating the trust. 2. That part of a declaration in an action for a breach of contract, in which the breach complained of is alleged, is frequently termed the breach. BREAI^.. The most important use of this term in jurisprudence is in de- termining the crim.e of burglary. As that ojffence involves the breaking into (or out of) a building, many cases have arisen for a decision of the question what constitutes a breaking, for this purpose. The breaking which will constitute bur- glary may be actual or constructive. Clarke V. Commonwealth, 25 Gratt. 908. Constructive, as distinguished from ac- tual, breaking, includes an entrance to a house obtained by threats, as if the felon threatens to set fire to the house unless the door is opened, or where a servant removes the fastening by design, or some trick is re- sorted to by which entrance Is efEected, or a fraudulent use is made of some process of law. The entry in such cases must be immediate. State v. Henry, 9 Ired. L. 46.3. Breaking necessarily includes force. An entrance may be made by force and not by breaking, but not by breaking without force. To allege a breaking in an indict- ment for burglary sufl[iciently shows use of force. Matthews v. State, 36 Tex. 675. To constitute burglary, any breaking that enables the prisoner to take the property out through the breach, with his hands, is a breaking sufficient, if the intent was felo- nious. Fisher v. State, 4.3 Ala. 17. Breaking into a store, with intent to steal and carry away goods, is a sufficient break- ing to constitute burglary. That goods should actually be taken and carried off is not essential. Olive v. State, 5 Bush, 376. A breaking into a house may be done by Are as well as by other means. The en- trance and the intention being shown, the breaking is not lost in the consumption of the building. White v. State, 49 Ala. 344. Entering through an open door to com- mit a felony, and unbolting a door to get out, is not actually or constructively a suf- ficient breaking and entering into to consti- tute a burglary. White v. State, 51 Ga. 285. Breaking open the shutters of a window, and protruding the hand within them, is not such an entry as will constitute the crime of burglary, in Alabama, the sash and glass not being broken. State w. McCall, 4 J.to. 643. Getting into the chimney of a house with intent to steal is a sufficient breaking to constitute burglary, though the party does not enter any of the rooms in the house. Donohoo V. State, 36 Ah. 281. The mere raising of a partly opened sash, so as to admit a person, is not a breaking such as constitutes burglary. Commonwealth v. Strupney, 105 Mass. 588; Kex v. Smith, 1 Moo. Cr. Cas. 178. The removal of an iron grating covering an area opposite a cellar-window of a store, is a breaking within the meaning of Mich. Comp. Laws; § 5766, defining burglary. People V. Nolan, 22 Mich. 229. An entry into a building by raising a transom window attached by hinges above, and arranged to fall into the frame by its own weight when the window was shut into the frame, so as to require some force to open it, is a sufficient breaking under Michigan statute (Comp. L. 1871, § 7563), punishing the breaking and entering an office, shop, &c., in the night-time, &c. Den- nis V. People, 27 Mich. 161. Bemoving a fastening from an inner chamber door, as unlocking it, or turning a button by which the door was fastened, in the night, with a felonious intent, is a suffi- cient breaking of a house to constitute burg- lary, though the outer door may not have been fastened. U. S. Dig. tit. Burglary. Where a person, through deception, caused the occupant of a dwelling to come to the door at night and let him in, and when once in knocked the occupant down, and robbed the dwelling, held, that the acts were a sufficient breaking to constitute burglary. State v. Mordecai, 68 N. C. 207. Under an indictment for feloniously breaking and entering a dwelling-house, in the daytime, the evidence was that the en- try was made through a door without any lock or latch, or any other fastening, but which fitted closely within the casing, so that, some force was needed to open it. Held, that this was a breaking within the statute. Finch's Case, 14 Gratt. 643. The getting the head out through a sky- light is a sufficient breaking out of a house to constitute burglary. Eex v. McKeamey, Jebb Cr. Cas. 99. Breaking bulk. A phrase designat- ing the act or ofienoe of a carrier or other bailee, who opens the parcel, box, or trunk in which goods intrusted to him are packed, and feloniously takes out and appropriates the goods. The decisions of the courts drew a distinc- tion between a conversion of an entire thing delivered for carriage, which was a fraudulent breach of trust, yet not a felonious larceny, and a breaking open a package, and taking out things there- from, which might be larceny. The phrase breaking bulk has been much used in the discussion of this question. The embarrassments surrounding the subject have been relieved, in England, by the larceny act of 1861 (Stat. 24 & 25 Vict. ch. 96, § 3), which provides that a bailee fraudulently converting to bis own use goods intrusted to him shall be BREHON 165 BRIBE guilty of larceny, although he shall not break bulk. Breaking jail or prison. A vernac- ular rather than technical term for an escape of a prisoner out of the place of custody. It is of narrower meaning than escape, which may be used to sug- gest the default of duty by the sheriff or jailer, as well as the offence com- mitted by the prisoner in leaving jail; while "breaking jail" and "J'rison- breach" carry the second meaning, only. Etymologically it might apply as well to acts of friends or confederates done in breaking into a prison in aid of the inmates-' escape; but it is doubtful whether the term is much used in this sense. It does not usually convey the idea of a breaking into a jail from with- out, but that of breaking out committed by those within ; though of com-se out- siders may be accomplices. BREHON LAW. The name given to the ancient law of Ireland as it ex- isted at the time of its conquest by King Henry 11. ; and derived from the judges, who were denominated Brehons. BRETHREN. In a will, may Include brothers and sisters. Terry v. Brunson, 1 Rich. Eq. 78. BREVE. Short; a writ. 1. Prop- erly, an original writ, by which aU ac- tions in the English courts were an- ciently commenced. 2. In a later use, any writ or precept under seal, issued out of any court, com- prising judicial as well as original writs ; i.e., writs issued in the progress of a cause as well as those by which suits were commenced; some of the judicial writs, especially the capias, having su- perseded the original writs previously in use. The various writs in time came to be distinguished by some characteristic word or phrase of the form used, or by words describing the general subject- matter; and some of these terms were transferred to the forms of action in which the writ was used. BREVET. 1. In military law, is a commission which advances an oflScer to a higher rank, but without entitling him to draw the corresponding increase of pay. In the United States military service, the effect of a brevet commis- sion is further restricted by provisions of Rev. Stat. §§ 1209, 1212. 2. In French law, brevet signifies a written authority or privilege conferred by government for the benefit of the grantee; like letters-patent in England and America. Thus, hreoet d'invention is equivalent to letters-patent for an in- vention. BREVIA. Writs. Several classes are mentioned; par- ticularly: Brevia anticipantia. Anticipating, i.e. preventive, writs. Termes de la Ley enumerates six as included: writ of mesne ; warrantia chartCE ; monstraverunt ; audita querela ; curia claudenda ; and ne inj'uste vexes. Brevia de cursu, or formata. Writs of course, or formal. This expression included a large class of writs which followed prescribed forms and were issued as of course. Brevia innominata or nominata. The writs which did not, or did, respec- tively, give details or particulars of the cause of action. Brevia judiciEilia or magistralia. Judicial or masters' writs. Those which were especially framed and judicially allowed, adapted to the circumstances of the particular cause. Brevia testata. The name of the short memoranda early used to show grants of lands, out of which the deeds now in use have grown . Jacob ; Holthouse. Brevibus et rotulis liberandis. For delivering the writs and rolls. The name of a writ or mandate directed to a sheriff, commanding him to deliver to his successor in office the county and the appurtenances, with all the writs, records, and other things belonging to his office ; the writ being named, as in other instances, from its leading words. BREVIATE. An epitome. A short statement of contents, accompanying a bill in parliament. Holthouse. BREWER. One who manufactures / fermented liquors of any name or descrip- tion, for sale, from malt, wholly or in part, or from any substitute therefor. Act of July 13, 1866, § 9, 14 Stat, at L. 117. BRIBE, n. Something of value or advantage, asked, ofiered, given, or ac- cepted with a corrupt intent to influence the person to whom it is ofEered or given BRIDGE 166 BRIDGE in his exercise of a power, authority, or privilege, in which the public have an interest. Bribe, v. : to give a bribe ; to influence official action by a corrupt ofEer of a personal advantage. Bribery : the offence of offering, giving, or accept- ing bribes. A high offence, where a person ia a ju- dicial place takes any fee, gift, reward, or brocage, for doing his office, or by color of his office, but of the king only. (3 Inst. 145 ; 1 Bawk. PI. C. ch. 67.) Taken more largely, it signifles the receiving or offering any undue reward to or by any person concerned in the administration of public justice, whether judge, officer, &c., to influ- ence his behavior in his office ; and some- times it signifles the taking or giving a re- ward for appointing another to a public office. (3 Inst. 9; iBl. Com. 139.) Jacob. The crime of offering any undue reward or remuneration to any public officer of the crown, or other person intrusted with a public duty, with a view to influence his behavior in the discharge of his duty. The taking such reward is as much bribery as the offering it. It also sometimes signifies the taking or giving a reward for public office. The offence is not confined, as some have supposed, to judicial officers. Brown. The word bribe has a legal and stat- utory signification; hence, an indictment where the offence is only laid that defend- ant " bribed C to vote," and that C did vote accordingly, sufficiently alleges the crime of bribery. Commonwealth v. Stephenson, Z Mete. {Ky.) 226. Bribery may be defined to be the giving, and perhaps the mere offering, to another, any thing of value, or any valuable service, intended to influence him in the discharge of a legal duty. Dishon v. Smith, 10 Iowa, 212. Any attempt to influence an officer in his official conduct, whether in the execu- tive, legislative, or judicial department of the government, by the offer of a reward or pecuniary compensation, is indictable as bribery ; and the offence is complete when an offer is made, although in a matter not within the jurisdiction of the officer. State V. Ellis, 33 N. J. L. 102. To constitute bribery, the gift, advan- tage, or emolument must be bestowed for the purpose of inducing the officer to do a particular act, in violation of his duty, or as an inducement to favor or in some man- ner to aid the person offering it, or some other person, in a manner forbidden by law ; and the gift, advantage, or emolument must precede the act. The offence does not include an offer (ff unaccepted) by an officer that he will accept money for per- forming an act. Hutchinson v. State, 38 Tex. 293. BRIDGE. A building of stone or wood erected across a river, for the com- mon ease and benefit of travellers. Jac(A. A building of brick, stone, wood, or iron, erected across a river, ditch, valley, or other place otherwise impassable, for the common ease and benefit of travellers. Wharton. Bridge has always stood for a structure that had a pathway, a horseway, a wagon- way, a roadway. In no law paper or docu- ment was a structure which had not a foot- way, as its elemental idea, ever denoniinat- ed purely and simply a bridge. In every general law respecting highways and bridges, in every provision for their erec- tion or repair, in every charter for particu- lar bridges, in every canal charter, in every railroad charter from the earliest times, — no structure that has not the foot-path for its elemental idea is taken for a bridge. In all it is assumed that there can be no bridge without the footway. A structure sustaining a railway across a river, but im- passable by men and horses, is not a bridge. Proprietors of Bridges v. Hoboken Land Co., 13 N. J. Eq. 503; 1 WaU. 147. To build a structure such as is common- ly called a railroad bridge, adapted and in- tended for the transit of railroad trains across a stream, though not for common vehicles or foot-passengers, is a violation of a charter giving an exclusive right to a corporation to maintain a bridge across the river, and providing that no person shall erect another bridge across it. A bridge is a structure of wood, iron, brick, or stone, ordinarily erected over a river, brook, or lake, for the more convenient passage of persons and beasts, and the transportation of baggage ; and whether it is a wide raft of logs fioating upon the water, and bound together with withs, or whether it rests on piles of wood, or stone abutments, or arches, it is still a bridge. A railroad bridge is intended to accommodate the safe and expeditious passage of persons over this stream in the cars or carriages pro- vided for that purpose, together with all baggage or freight. It may not, and is not intended to, accomplish all the ob- jects of a common bridge, as it is not adapted to the common vehicles in use. But can that fact change its character as a bridge ? A bridge adapted only to foot- passengers would still be a bridge. Enfield Bridge Co. v. Hartford, &o. R. R. Co , 17 Conn. 40. The filling up, or that portion of the highway which connects the abutments of a bridge with the main land, and renders the structure of the bridge accessible to travellers, is a part of the bridge within the rule making certain public or other author- ities liable for defective repair of the bridge. The term bridge conveys to the mind the idea of a passage-way, by which travellers and others are enabled to pass safely over streams or other obstructions. A structure made of stone or wood which spans the width of a stream, but ia wholly inaccessible at either end (whatever it may be in architecture), is not what is meant BRIDLE 167 BRIEF in law and common parlance by bridge. Freeholders of Sussex v. Strader, 18 N. J. L. 108. To the same effect is Tolland v. Willington, 26 Com. 578. A bridge over a canal is not such a bridge as the inhabitants, at common law, were indictable for not repairing. Canals are devices contrived long after this com- mon law was made. A bridge, in the tech- nical meaning of the common law, ex vi ter- mini, was a structure for passage over a river, not over a ditch. State ». Hudson County, 30 N. J. L. 137, 147. Bridge is not confined to structures erected to cross running streams. Struc- tures for the passage of travellers, erected over a railroad where it crosses an estab- lished highway, fall under the designation of bridges, as that term is used in our sta^ utes regulating liability of towns for non- repair of bridges ; and for the want of proper repair of such bridges and their abutments, so constructed by a railroad company, being a part of the highway which the town is bound to maintain, they are liable to an indictment. State o. Gor- ham, 37 Me. 451. BRIDLE ROAD. This phrase, as applied to a private way, in the laying out by the selectmen and in the acceptance by the town, does not confine the right of way to a particular class of animals or special mode of use. Magg v. Flagg, 16 Gray, 175, 181. BRIEF. 1. A concise statement of the case proposed to be set up by either party to a cause about to be tried or ar- gued. In English practice, this memoran- dum has had a definite importance, in view of the peculiar relations between the attorney or solicitor and the barris- ter or advocate. As the charge and duty of drawing and serving the plead- ings and collecting evidence has long been cast upon the attorney or solicitor, who, however, has no part in presenting them orally to the court, but this task must be confided wholly to the barrister, some complete, reliable, and convenient means of putting the barrister in full possession of all the facts and grounds of the client's case is of the utmost im- portance; and this oflice has been per- formed by the brief. It forms the guide of the barrister in the performance of his duty in presenting the client's case. It usually contains an abbreviated state- ment of the pleadings, proofs, and affi- davits at law, or of the bill, answer,and other proceedings in equity, with a con- cise narrative of the facts and merits of the plaintiS's case, or the defendant's defence, for the instruction of counsel at the trial or hearing. The entire case of the party is to be briefly but fully stated ; the proofs must be placed in due order, and proper answers made to whatever may be objected against the client's cause, by the opposite side; and great care is requisite that nothing be omitted to endanger the cause. In American practice, where the du- ties of attorney and advocate are gener- ally combined in one person, the brief is only such memorandum as the indi- vidual practitioner may choose to pre- pare beforehand, to assist on the imme- diate occasion of the trial. The word is very often used to designate a memo- randum which counsel, employed to ar- gue a cause in an appellate court on questions of law, prepares, setting forth the propositions of law he desires to es- tablish, and indicating the reasons and authorities which sustain them; this, however, is quite a different thing from the English brief. In several of the states, however, the rules of the su- preme courts require that counsel, in a cause about to be argued, shall file be- forehand a brief, for the information of the court and the counsel of the adverse party. The requisites of such a brief are such as are prescribed by the par- ticular rule under which it is supplied. A brief, within a rule of court requiring counsel to furnish briefs, before argument, implies some kind of statement of the case for the information of the court. Gardner V. Stover, 43 Ind. 356. 2. Brief is also used in Scotch law, in the sense of writ, in such terms as — Brief out of chancery: a wi'it or com- mand from the king to a judge, to ex- amine, by an inquest, whether a man be nearest heir. Brief of distress : a writ out of the chancery, after decree ob- tained against any landlord to distress his readiest goods, according to an obso- lete custom. Brief of mort-ancestry: a writ used for entering of aU heirs of de- functs. Brief of title is sbmetimes used in a sense equivalent to the more common term, abstract of title, q. v. ; a concise statement of the conveyances, mort- gages, &c., afEeoting the title to a parcel of real property. BROKER 168 BROKER Brief statement, as used in the prac- tice in Maine, allowing the parties to a cause to bring it to trial upon brief state- ments instead of formal pleas and replica- tions, conveys the idea of a short notice, vpithout formal or full statements of the matters in issue. Such brief statements cannot prevent either party from offering testimony appropriate under the general issue ; nor can the omission to deny, in a counter brief statement, some matter al- leged in the brief statement, control or destroy the effect of testimony properly re- ceived under it. Such brief statements ap- pear to have been considered as amounting to little more than notices of special mat- ter to be given in evidence. 29 Me. 499. BROKER. An agent employed to negotiate sales of property, without being charged with the custody or de- livery of it. Brokerage: the function or business of a broker; also, the com- pensation of a broker for his services; his commission. Brokers are those who make bargains and contracts between merchants and tradesmen, in matters of money and mer- chandise, for which they have a, fee or reward. Liv. Ag. 73. The law does not seem to have defined what the precise character of a broker is Stat. 1, Jac. 1, ch. 21, speaks of brokers as employed in contriving, making, and concluding bargains between merchant English and merchant strangers and trades- men concerning their wares and merchan- dise to be bought and sold, and moneys to *be taken up by exchange ; and styles it an " ancient trade." Later acts recognize per- sons making contracts for public or corpo- rate stocks as brokers. Accordingly one who for hire concludes or bargains in gov- ernment or South Sea stocks is deemed a broker, but not so are commission mer- chants generally. (4 Burr. 2104 ; 2 H. Bl. 556. ) One definition which has been given is : a person who privately makes a bar- gam between other persons ; not publicly, as is done in the vocation of auctioneers. Pal. Ag. 13, note. The engagement, says Domat (book 1, tit. 17, § 1, art. 1 ), of a broker is like to that of a proxy, a factor, and other agent ; but with this difference, that the broker being employed by persons who have opposite interests to manage, he is, as it were, agent both for the one and the other, to negotiate the commerce or affair in which he con- cerns himself. Thus his engagement is twofold, and consists in being faithful to all the parties, in the execution of what every one of them intrusts him with. And his power is not a trust, but to explain the intentions of both parties, and to negotiate in such a manner as to put those who era- ploy him in a condition to treat together personally. Wharton. A broker or intermediary is he who is employed to negotiate a matter between two parties, and for that reason is consid- ered the mandatary of both. His obliga^ tions are similar to those of an ordinary mandatary, with this difference, that his engagement is double, and requires that he should observe the same fidelity to all parties, and not favor one more tlian the other. He is not responsible for the events which arise in the affairs in which he is employed; he is only, as other agents, an- swerable for fraud or faults. Except in case of fraud, he is not answerable for the insolvency of those to whom he procures sales or loans, although he receives a re- ward for his agency and speaks in favor of him who buys or borrows. Commercial and money brokers, besides the obligations which they incur in common with other agents, have special duties prescribed by the law regulating commerce. Per Howell, J., in dissenting opinion. Todd v. Bourke, 27 La. Ann. 385. A broker is a mere negotiator between other parties, never acting in his own name, but in the names of those who employ him. He is strictly a middle-man, and,. for some purposes, the agent of both parties. Hen- derson V. State, 50 Ind. 234, 239. As a general principle, the same individ- ual cannot be the agent of both parties. But persons who have undertaken certain duties of a particular character are treated as the agents of both parties; such are brokers. Strictly, therefore, a broker is a middle-man, or intermediate negotiator be- tween principal parties. Hinckley v. Arey, 27 Me. 362. A broker's business is to bring buyer and seller together ; he need not have any thing to do with negotiating the bar- gain. Keys V. Johnson, 68 Pa. St. 42. An agent employed to sell goods on com- mission is a mere broker. As such he is authorized to make contracts for the sale and delivery of the goods, but is not author- ized to make such contracts in his own name, nor to receive payment for the prop- erty so sold. Dunn v. Wright, 51 Barb. 244. A broker is a mere go-between, and is not Uable for a premium of insurance, un- less he acts under a del credere commission. Touro V. Cassin, 1 Nott ^ M. 173. Every person, firm, or company whose business it is to negotiate purchases or sales of stocks, bonds, exchange, bullion, coined money, bank-notes, promissory notes, or dther securities, for themselves or others, declared a broker. Act of July 13, 1866, § 9, 14 Stat, at L. 116; Warren o. Shook, 91 U. S. 704. The origuial of the word is from the Saxon hroc, misfortune, which is often the reason of a man's breaking; it implies a broken trader by misfortune, and none but such were formerly admitted to the employment. Jacob. But see Termes de la Ley ; and Burrill. While the sale, by a person doing a bank- ing business only, of a security received by him for the repayment of a legitimate loan. BROTHER 169 BUDGET does not make him a broker, and Bubjeot him to taxation as such, yet, when it is his business, the statute holds all such acts, whetlier in the name of himself ostensibly or in the name of others, to be those of a broker. Warren v, Shook, 91 U. S. 704. One whose occupation is to sell agri- cultural produce in public market is not exempted from the tax imposed by the internal revenue law of 1866 upon produce brokers, by the fact that the produce sold is not purchased by him for sale, nor sold as agent for another, but is raised by him- self upon his farm. United States v. Si- mons, 1 Abb. U. a. 470. A salaried agent, who does not act for a fee or rate per cent, is not a broker. Port- land V. O'NeiU, 1 Oreg. 218. The difEerence between a factor or com- mission merchant and a broker is this : a factor may buy and sell in his own name, and he has the goods in his possession; while a broker, as such, cannot ordinarily buy or sell in his own name, and has no possession of the goods sold. Slack ». Tucker, 23 Wail. 321, 330. The legal distinction between a broker and a factor is, that the factor is intrusted with the property the subject of the agency ; the broker is only employed to make a bar- gain in relation to it. Perkins v. State, 50 Ala. 154, 156. BROTHER. A male person who is the child of the same parents with an- other person; also, one who is a child of either the same father or mother with another. But, l£ one parent only is common, the term half-brother is a more accurate designation. Brothers and sisters. This phrase, as used in the Indiana statute of descents of 1831, included as well brothers and sisters of the half as of the whole blood. Clark v. Sprague, 6 Black/. 412. s. F. as to the act of 1818. Doe d. Moore v. Abemethy, 7 Black/. 442. So the words brothers and sisters of such ancestor, in section 1, subd. 4, of the Ohio statute of descents, include half-brothers and half-sisters. Oliver v. Sanders, 8 Ohio iSt. 501. A statute which declares the act of a brother marrying his sister to be incest, is jiot confined to children of parents lawfully married. The terms brother and sister mean offspring of the same parents. They do not imply legitimacy of birth. It would be quite proper to use these words in refer- ence to those born out of wedlock. The statute then forbids, and declares criminal, the marriage of illegitimate offspring of the same parents. State v. Schaunhurst, 34 Iowa, 547. BUBBLE. A chimerical or visionary- scheme for business or trade has been called, particularly in England, a bub- tlej and eorporationa formed to prose- cute such are stigmatized as bubble companies. The Stat. 6 Geo. I. ch. 18, was enacted to prevent the organization of companies founded without real cap- ital or business, and for the purpose of deceiving the public into a purchase of shares, by high-colored statements of the condition and prospects of an imagi- nary concern. The reign of Queen Anne, and early years of George I. were very prolific in combinations of this description; so much so, that in 1720 it was found necessary to formally abol- ish, by an order in council, a large num- ber of companies, organized for a great variety of fanciful purposes, — e.g. for building and rebuilding houses through- out all England; for effectually settling the islands of Blanco and Sal Tortugas ; for carrying on "an undertaking of great advantage, nobody to know what it is; " for improving the art of making soap ; for a settlement on the island of Santa Cruz; for a wheel for perpetual motion, capital one million; for insur- ing and increasing children's fortunes; for carrying on a trade in the river Orpnooka ; for insuring to all masters and mistresses the losses they may sus- tain by servants; for extracting silver from lead ; for the transmutation of quicksilver into a malleable fine metal. Several subsequent periods have wit- nessed the birth of schemes less numer- ous and more plausibly disguised, but perhaps not less mischievous. The bubble act, 6 G«o. I. ch. 18, was repealed by Stat. 6 Geo. TV. ; but it gave rise to much litigation while it continued in force; and the terms bubble act and bubble company are of frequent occur- rence in decisions of American courts, involving the rights of persons who have been defrauded by the organization of such companies, and the liabilities of pro- moters and directors concerned in them. BUDGET. The name applied in England to the financial statement of the national revenue and expenditure for each year, submitted to parliament by the chancellor of the exchequer; somewhat analogous to the estimates for appropriations, usually submitted by heads of departments in the govern- ment of the United States to congress, at its annual sessions. BUGGERY 170 BUILD The chancellor of the exchequer makes one general statement every year to the house of commons, which is intended to present a comprehensive view of the finan- cial condition of the country. Sometimes there are preliminary, or supplemental, or occasional speeches ; but the great general statement of the year has, for a long time past, been quaintly called "the budget," from the French bougette, by a common fig- ure of speech, putting the name of that which contains, to signify the thing con- tained. The annual speech known by that appellation embraces a review of the in- come and expenditure of the last, as com- pared with those of preceding, years ; re- marks upon the financial prospects of the country ; an exposition of the intended re- peal, modifications, or imposition of taxes during the season ; and a detail of the pub- lic expenditure during the current period, with its grounds of justification. Dod's Pari. Comp. BUGGERY. A carnal copulation against nature ; and this is either by the confusion of species, — that is to say, a man or a woman with a brute beast ; or of sexes, as a man with a man, or man unnaturally with a woman. (3 Inst. 58 ; 12 Co. Rep. 3Q.\ It is felony both in the agent and pa- tient consenting, except the person on whom it is committed be a boy under the age of discretion (which is generally reckoned at fourteen), when it is felony only in the agent ; all persons present, aiding and abet- ting to this crime, are all principals, and the statutes make it felony generally. In every indictment for this offence there must be the words rem habuit veneream et camaliter cognovit, &c., and of consequence some kind of penetration and emission must be proved ; but any the least degree is suf- ficient. (1 Hawk. P. C. ch. 4.) Jacob. See Sodomy. Penetration of a beast by a man, against the order of nature, although without emis- sion, constitutes the crime of buggery. Commonwealth v. Thomas, 1 Va. Cos. 307. BUILD. To erect or construct. Building, n.: an edifice erected upon foundations in the soil, composed of materials such as wood, stone, brick, or iron, and designed for use in the posi- tion in which it is fixed, as a habitation or shelter. The verb is used in a larger extension than the noun ; thus, a vessel is not a building, yet it is proper to say build a ship. A canal company authorized to make a canal and take tolls, on condition that they will build suitable bridges, is bound, by im- plication, to keep such bridges in repair. Commissioners of Franklin County ii.White Water Valley Canal Co., 2 Ind. 162. Under a general power vested in the common council of a city to build markets, it was held that the council had authority to employ an architect. Peterson i;. Mayor, &e. of New York, 17 N. Y. 449. A builder or contractor, within the in- ternal revenue law, is one whose business it is to construct buildings, or vessels, or bridges, or railroads, by contract. Act of July 13, 1866, § 9, 14 Stai. at L. 121. Builder, as used in a statute giving any builder of a vessel a lien for his pay, does not embrace one who furnishes the steam-engines for a steamer, under a con- tract with the owners distinct from that made with the general contractor for the construction of the vessel. Calkin v. United States, 3 Ct. of CI. 297. Building, as used in a mechanic's lien law, cannot be held to include every spe- cies of erection on land, such a's fences, gates, or other like structures. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament, or use, con- stituting a fabric or edifice, such as a house, a store, a church, a shed. It does not include a wall built near and surround- ing a structure, for the purpose of protect- ing it from earth slides from an adjoining hill. Truesdell v. Gay, 13 Gray, 311. An act giving a lien for work performed in the " erection, construction, or finish- ing " of buildings, does not give a lien for flagging of sidewalks, yards, and areas of buildings in the process of erection. Mc- Dermott v. Palmer, 8 N. Y. 383. Building, as used in the mechanic's lien law of New Jersey, Nix. Dig. 487, does not include a floating dock. The act only in- tends to create liens on land, or what in construction of law is land, and not on merely movable property. Building is not used in the act in its broadest signification. Ships are not included ; yet ships are built. By the term building, the legislature meant something in the nature of houses, as houses, mills, manufactories ; buildings at- tached to and becoming part of the dry land itself ; edifices constructed for use or convenience, such as houses, churches, shops, &c. Coddington v. Beebe, 31 N. J. L. 477, 484. A railroad bridge or track is not a dwell- ing-house or other building within the lien law. La Crosse, &c. R. R. Co. v. Vander- pool, 11 Wis. 119. A railroad depot is within the lien law. HiU V. La Crosse, &c. R. B. Co., 11 Wis. 214. A ditch is not embraced in the phrase, a " building, wharf, or other superstructure." Ellison V. Jackson, &c. Co., 12 Cal. 642. In order that alterations in an edifice should entitle the mechanic to acquire a lien, under a statute giving a lien for the construction of " a building," the repairs must be so extensive as fairly to change the exterior of the edifice into a new struc- ture. There must be, substantially, a re- building. The idea which runs throughout all the cases is newness of structure in the BUILD 171 BULLION main mass of the building, — that entire change of external appearance which de- notes a different building from that which gave place to it, though into the composi- tion of the new structure some of the old parts may have entered. The reason for this is not only in the fact that the external walls of a building constitute the strongest mark of its identity, and are its main part, but also in the notice that the external change furnishes to purchasers and lien creditors. Miller v. Hershey, 69 Pa. St. 64. Where a building was removed and ex- tensively repaired, and an addition made, of the same width, height, and slope of roof, it was held that these acts did not constitute an erection of a building, within a mechanic's lien law. But an addition to a building, constructed by erecting a wooden frame, and then placing a wall of brick and mortar four inches thick around the frame, with piers and layers of brick and mortar, by which the wall was strength- ened and the roof supported, was held with- in the statute. Tuttle v. State, 4 Conn. 68. A saw-mill is not necessarily a building within a statute which prohibits the burn- ing of any building other than a dwelling- house. State V. Livemiore, 44 N. H. 386. A lease of " a building " conveys the land under the eaves and projections, if that land is owned by the lessor. Sherman v. WUUams, 113 Mass. 481. A covenant not to erect a building within a certain distance from a boundary line may be held, on evidence of the circum- stances under which the covenant was made, to preclude the covenantor from erecting a fence, which would have the same effect in respect to shutting off light and air ; and an injunction may be granted to restrain the covenantor from erecting such a fence. Thus a wooden fence, twenty feet high, extending from the defendant's wall to the rear of his lot, was held a build- ing within the meaning of a covenant against the erection of buildings. Wright V. Evans, 2 Abb. Pr. N. s. 308. Where a deed gave the grantee the privi- lege of cutting timber for building on the premises, from the woods of the grantor, the word building was held, upon evidence of usage, known to the grantor and his heirs, to cut timber for fencing, to include making of fences. Livingston v. Ten Broeck, 16 Johns. 14. A building partly of wood and partly of brick held not within the prohibition of an ordinance against wooden buildings. See Stewart v. Commonwealth, 10 Watts, 307. Built, in an agreement under which a tax was voted in aid of a railroad, was held applicable to a road so far progressed as to be in a condition to be operated, although not completed. Muscatine Western R. K. Co. V. Horton, 38 lavoa, 33. A proviso in a stock subscription that the " road shall be built " in a specified locality, is, by the permanent location of the road there, sufliiciently complied with to render the subscriber liable for calls, though the road is not completed. Warner v. Callen- der, 20 Ohio St. 190. A mill which had been built, and had gone down prior to the act of 1819 (1 Rev. Code, ch. 235, § 10), and which was rebuilt after the passing of that act, was held not a mill " thereafter built," within the meaning of the statute. Webb's Case, 2 Leigh, 721. BULL. 1. An instrument granted by the pope of Rome, and sealed with a seal of lead, containing some decree, commandment, or other public act, ema- nating from the pontiff. Bull in this sense corresponds with edict or letters- patent from other governments. Coivel; 4 Bl. Com. 110; 4 Steph. Com. 177, 179; Bouvier. 2. A bull, in the parlance of the stock exchange, is one who buys stock for set- tlement at a futm'e date, with a view to gain by a rise in price in the interval. A bear is one who sells stock, with a view to buy shares for the fulfilment of his contract, when they can be had at a lower price. Hence the phrase, bull and bear transactions, is used to signify speculations for the rise and fall of stock. The speculations of the bulls are founded on an expectation of a rise in prices ; those of the bears on a belief in a fall. Fenn's Comp. ; Mozley §• W. BULLION. Gold or silver, uncoined, or in mass. The term has reference to material for coinage, and, as ordinarily used, suggests the idea of bars or ingots of either of the precious metals, whether only smelted or perfectly refined, such being the form in which, when designed for the mint, they are usually prepared. But plate, ornaments, or even foreign uncurrent coin, may be spoken of as bullion, when the notion to be expressed is not that of distinct articles or coins, usable as such, but as a mass of metal, intended for coinage. Bullion fund. A fund of public money maintained in connection with the mints, for the purpose of purchas- ing precious metals for coinage. By the original theory, the owner of bull- ion deposits it with the mint for coin- age, waits tiU the process is completed, and receives the coin which is' made. But, by aid of the bullion fund, he sells the metal to the government, is paid its value at once from the fund, aud the BUOY 172 BURGH coin, -when made, is the property of the government. BUOY. A signal of shallow water; constructed by anchoring some conspic- uous object which will float at the spot where difficulty of navigation is to be apprehended. BURDEN OF PROOF. A phrase used to designate the obligation im- posed on a party who alleges a fact necessary in the prosecution or defence of an action, to establish it by evidence. This obligation may fall either upon the plaintiff or defendant, according to the nature of the issue. Whoever seeks to be benefited by any fact is bound to establish it, and the burden of proof is accordingly said to be upon him. The rule is one of convenience, adopted not because it is impossible to prove a negative, but because the nega- tive does not admit of the direct' and simple proof of which the affirmative is capable. 1 Greenl. Ev. § 74. It is a, familiar and well-settled rule of pleading, as of logic, that he who afiirms the existence of a given state of facts must prove it. There may be different modes and instrumentalities of proof ; but the bur- den is on him who aflSrms, and not on him who denies. Crowninslueld v. Crownin- shield, 2 Gray, 524. The burden of proof devolved upon the plaintiff is coextensive only vfith the legal proposition upon which his case rests. It applies to every fact which is essential, or necessarily involved in that proposition. It does not apply to facts relied upon in defence to establish an independent propo- sition, however inconsistent it may be with that upon which the plaintiff's case depends. It is for the defendant to furnish the proof of such facts ; and, when he has done so, the burden is upon the plaintiff not to dis- prove those particular facts, nor the propo- sition which they tend to establish, but to maintain the proposition upon which his own case rests, notwithstanding such con- trolling testimony, and upon the whole evi- dence in the case. Wilder v. Cowles, 100 Mass. 487. BUREAU. An office for the trans- action of business. In the organization of the executive business of the govern- ment, the great divisions are termed departments ; then each department has offices or bureaus subordinate to it, to which the more important heads of its business are assigned. In American usage there is no ob- vious distinction between bureau and office, in the names employed. The business of the departments of state and of the navy is systematically di- vided among bureaus, so called. In the war department the subordinate divisions are termed, in the statutes, offices. So there are the register's office, the land office, and the patent office; and also the bureau of statistics, and the bureau of the mint. BURGAGE. One of the ancient English tenures is designated as bur- gage tenure. It is described as having been one of the three species of free socage holdings; and the name applied where houses, or lands which were for- merly the site of houses, in an ancient borough, were held of the lord by a certain rent. Burgage tenure was sub- ject to several peculiar customs, the most remarkable of which is borough English, q. v. Tenure in burgage is where the king or other person is lord of an ancient borough, in which the tenements are held by a rent certain. It is, indeed, only a kind of town socage ; as common socage, by wliich other lands are holden, is usually of a rural nar ture. Jacob. BURGESS. Originally, a freeman or corporate member of a borough, cor- responding in modern usage with citi- zen in a city, though anciently citizen and burgess seem to have been distinct classes in England. Also, more espe- cially magistrates or chief officers of boroughs are styled burgesses; and the name has been applied to representa- tives of boroughs in parliament. In Pennsylvania, the title burgess has been applied by the general laws governing incorporation of towns and villages, to the chief administrative officer of those corporations. Generally, the inhabitants of a borough or walled town ; men of trade ; sometimes restricted to the magistrates, &c., of cor- porate towns, and sometimes to the repre- sentatives of such borough in the commons' house of parliament. Wharton. BURGH, or BURG. An old term signifying a small walled town or place of privilege. Some authorities make it also equivalent to borough, q. v. The word ap- pears as an affix in the names of some cities and towns, as Edinburgh, Pittsburg; also in a few compound words ; such as : Burgbote. A tribute or contribution towards the building or repairing of cas- tles or walls of a borough or city. BURGLARY 173 BURGLARY Burgmote. A court of a borough. Jacob; Wharton. BURGLARY. The name of a crime, which consisted, at the common law, in breaking and entering into the dwell- ing-house of another, in the night, with intent to commit some felony within the same, whether the felonious intent was executed or not. It originally in- cluded the breaking and entering the walls or gates of a town or city, or of a church; and, although doubt was for- merly expressed whether a church could be the subject of burglary, 1 Hawk. ch. 38, § 17, the better opinion now is that it may be, 3 Inst. 64; 1 Hale 556 ; 3 Cox C. C. 581 ; see 2 Ben. §• H. Lead. Cas. 54; 1 Qreav. Russ. Cr. 826. The question being disputed whether, when a person got into a house without breaking, his breaking out was burg- lary, the Stat. 12 Anne, ch. 1, § 7, was passed, making such breaking out, where all the other elements were com- prised, burglary. This was supple- mented by Stat. 7 & 8 Geo. IV. and 24 & 25 Victoria, making a more extended application of the provisions of the for- mer, and more fully defining what should constitute a breaking. In order to constitute the offence, there must be both a breaking, actual or constructive, and an entry, or an exit. What will be a sufficient breaking or entry will depend on the animus of the person and the particular facts of the case. See Break. The breaking and entry must also be in the night, though they need not be both in the same night; for if a person breaks a hole in the house one night, with the intent to enter another night, and commit felony, and he accordingly does so, through the hole he made the night before, this is burglary. 1 Hale, 551. Originally, it was not considered necessary that the breaking should be by night, but this requisite of the offence was introduced during the reign of Edward VI. The breaking and entering must also be in a dwelling-house, and that one be- longing to another; that is to say, a house in which the occupier and his family usually reside. . 60 Pa. St. 103; 34 Col. 242. What constitutes a dwelling-house, so as to make it the sub- ject of burglary, depends on the state of the neighborhood, the settled condition ' of the country, the business, and where carried on, of the occupant, his habits and manner of living, &o., and particu- larly with reference to what outbuild- ings compose a part thereof. It may be generally stated, however, that no matter to what use an outbuilding may be put, to break and enter it is burg- lary, if it is appurtenant or ancillary to the dwelling-house, and is within such convenient distance from the same as to make passing and repassing an ordinary household occurrence, and especially if it is within the same enclosure. And breaking into a house which is unquali- fiedly one's own, although done with violence, is not burglary. Clarke v. Commonwealth, 25 Oratt. 908. The offence is not complete without the felonious intent. A breaking and entry without this is only a trespass. The intent, however, need not be carried into execution. And whether the fel- ony intended is one by common law or statute is immaterial. Burglary, as defined by the common law and the English statutes, has been modified by enactment in nearly all of the United States, and different degrees of the crime established, thereby pro- viding for offences committed by day as well as by night. Burglary is the breaking and entering the dwelling-house of another, in the night- time, with intent to commit a felony. Hunter v. State, 29 Ind. 80; State w. Wil- son, 1 N. J. L. 441 ; State v. Henry, 9 Ired. L. 463; State v. Langford, 1 Dev. 253; Commonwealth v. Newell, 7 Mass. 247. Burglary, by the laws of Ga. in 1821, might be a breaking or entering in the night or day, with intent, &c. State v. Thomp- son, E. M. Charlt. 80. Larceny is not included in burglary, as manslaughter is in miu'der, within the meaning of Cal. Grim. Pract. Act, § 424, which provides that a defendant may be convicted of an offence included in that with which he is charged. People v. Gar- nett, 29 Cal. 622. To constitute burglary, where there ia no actual, but a constructive, breaking, the entry must be simultaneous with the open- ing of the door, or follow it so immediately as to preclude the owner from the power of shutting or refastening the door before the entry. State v. Henry, 9 Ired. L. 463. Unlatching a door which ia only latched, BURGLARY 174 BUSHEL though it is burglary at the common law (1 Hale, 552 ; 2 East PI. C. 487 ; 3 Chitt. Cr. L. 1093; 1 Hill, 238), is not burglary in the second degree, within the statute definition of 2 N. YT Rev. Stat. 668, § 11. People v. Bush, 3 Park. Cr. 552. Unlatching the door of a sleeping apart- ment, and entering, with intent to kill, has been held burglary. United States v. Bowen, 4 Cranch C. Ct. 604. The prisoner entered a flouring-mill through an open window without sash, crossed a floor, went up a ladder, and raised a trap-door not fastened, and stole flour. This was held not burglary, either at com- mon law or under the reyised statutes, but merely a larceny, on the ground that breaking in from the outside is essential to burglary in the case of a building other than a dwelling. People v. Fralick, Hill Sf D. Supp. 63. That it is burglary for the thief to break out of a house, into which he entered in the night, with an intent to steal, though he did not break in entering, see Guche's Case, 6 City a. Rec. 1. One who has lawfully entered one part of a house may be convicted of burglary in breaking into another part, into which he has not the right to enter. Thus a guest at a hotel, who feloniously breaks into the room allotted to another guest, is guilty of burglary. State v. Clark, 42 Vt. 629. Breaking into a dwelling, the front and door of which are in the yard of a dwelling- house, although the rear is not within the yard, and the breaking was in that part of the building, is within the meaning of a statute, Ala. Rev. Code, § 3695, defining burglary as breaking and entering "into a dwelling-house or any building within the curtilage of a dwelling-house," &c. Fisher v. State, 43 Ala. 17. A banking-house is a store, shop, or warehouse, within the meaning of Conn. Rev. Stat. tit. 4, ch. 4, § 39, defining the crime of burglary. Wilson v. State, 24 Cmn. 57. In Georgia, burglary may be committed in a house which is "the place of business of another, where valuable goods, wares, or produce, or other articles of value, are con- tained or stored ; " and this is so although the business may not be of the kind which is carried on in conducting a store-house. Nor is it necessary to prove the house broken into and entered was the " place of business," &e., used for the purpose of con- taining or storing the goods alleged to have been stolen. Bethune v. State, 48 Ga. 505. Breaking open, in the nighttime, a store, at the distance of twenty feet from a dwell- ing-house, but not within the same enclos- ure, no person sleeping in the store, is not burglary. People v. Parker, 4 Johns. 424. The breaking and entering a store-house, not part of a dwelling-house, is not burglary by the common law, nor by any statute of Pennsylvania. HoUister v. Commonwealth, 60 Pa. St. 103. , It is not bjirglary to break and enter a smoke-house, thirty-five steps from a dwell- ing-house, the latter having no enclosure around it. State v. Jake, 1 Wins. L. ^ Eg. 80. BURN. The burning of another's property, and even, under certain cir- cumstances, of one's own, was an ofEence under the common law, and is also punishable by various statutes in England and in this country additional to the law of arson. Hence decisions have arisen turning upon what is a suffi- cient burning, to constitute the crime of arson, or to expose the perpetrator to punishment under the statutes against felonious burnings eo nomine. Burning and setting fixe to are not legal synonymes. Howel v. Commonwealth, 5 Gratt. 664. Burn is a sufficient term in an indict- ment for arson. Hester v. State, 17 Ga. 130. Where the floor near the hearth was scorched and slightly charred, but had been at a red heat, although not in a blaze, held, that there was a sufficient burning to support an indictment for arson. Reg. V. Parker, 9 Carr. Sf P. 45. To constitute burning within the law of arson, the house need not be absolutely con- sumed or burned. If the fire is applied so as to take effect, this is enough, though only a part is consumed. People v. Butler, 16 Johns. 203. To constitute burning within a statute punishing the maliciously burning a build- ing, there is no necessity that any integral part of the building should be consumed, or that the fire should have any long con- tinuance. Mere scorching is not enough. But if any part, however small, of the wood of the building has been ignited and consumed, this is sufficient. Commonwealth V. Belton, 5 Gush. 427. The statute of 28 & 23 Car. 11. ch. 7,— providing that " if any person shall, in the night-time, maliciously, unlawfully, and willingly bum, or cause to be burned or destroyed, any ricks, &c., barns, or other houses or buildings," — does not apply, un- less injury to a building is done, sufficient to unfit it for the purpose for which it was erected. State v. De Bruhl, 10 Ridu 23. To warrant a conviction under Vt. Comp. Stat. 545, ch. 104, § 4, it is not necessary that any portion of the building should be actually burned. If fire was applied to, or in immediate contact with, the building, with intent to burn it, this is enough, though such intent was not carried out. Sute V. Dennin, 32 Vt. 158. BUSHEL. A measure of quantity for dry substances, such as grain. The exact dimensions differ somewhat in different jurisdictions under the various enactments. The bushel established by BUSINESS 175 BY the 5 Geo. IV. oh. 74, § 7, and 6 Geo. IV. ch. 12, has not been uniformly, though quite generally, adopted in this country. In estimating duties on grain, bushels are ascertained by weight instead of by measuring. See U. S. Rev. Stat. § 2919, for the weights allowed to a bushel; in respect to the various species of grain. Bushel, in general, means eight gallons ; but in respect to wheat, rye, and Indian corn, it means a quantity in weight, accord- ing to 1 Rev. Stat. 608, § 14; Id. 611, § 36. An agreement to furnish one thousand bushels of good, merchantable wheat is satisfied by tendering one thousand bush- els of statute weight, though it may not fill the statute measure of eight gallons to the bushel. Milk v. Christie, 1 HiU, {N. Y.) 102. Under the Vermont statute of 1824, flf ty- six pounds of corn is equivalent to one bushel, and a contract for bushels of corn is satisfied by as many times fifty-six pounds, whether it measures the specified number of bushels or not. Richardson w. Spafford, 13 Vt. 245. According to the standard in use in the United States custom-house, and adopted by the law of Kentucky, the bushel con- tains 2150.42 cubic inches. Caldwell v. Dawson, 4 Mete. (Ky.) 121. BUSINESS. This word embraces every thing about which a person can be employed. People v. Commissioners of Taxes, 23 A^. Y. 242, 244. Business is a word of large signification, and denotes the employment or occupation in which a person is engaged to procure a living. It includes the vocation of playing upon musical instruments, pursued as a means of livelihood. A violin of a musician, who supports himself by playing it, is an implement necessary for carrying on his business, within a statute exempting such implements from execution. Goddard i>. Chaffee, 2 AUen, 395. " Business " and " employment," as used in the statute of Alabama, 1848, requiring every person engaged in any business or employment to take out a license, are sy- nonymous terms, signifying that which occupies the time, attention, and labor of men for the purpose of a liveUhood or profit. Business is there understood in the sense of a calling for the purpose of a live- lihood. Moore v. State, 16 Ah,. 411. The carrying on of a school, to which the public at large are invited to send their children, may be included in the word busi- ness. Doe d. Bish v. Keeling, 1 Man, Sp S. 95. The defendant having established a route which he travelled for the sale of the tobacco manufactured by G, and hav- ing secured a large number of regular customers, sold the route and good-will, with his stock, tools, &c., to the plaintiff, and agreed that he would not hinder or obstruct him in the business within that district. It was held that his subsequently entering into the bnsiniess of Selling tobacco as agent for other manufacturers within the same district was a breach of the con- tract, which might be forbidden by injunc- tion. Ewing V. Johnson, 34 How. Pr. 202. Labor, business, and work are not syn- onymes. Labor may be business, but it is not necessarily so; and business is not always labor. Making an agreement for the sale of a chattel is not within a pro- hibition of labor upon Sunday, though it is (if by a merchant in his calling) within a prohibition upon business. Bloom v. Rich- ards, 2 Ohio St. 387. The execution of a bond is within a stat- ute proiiibiting " labor, business, or work " upon the Lord's day. Pattee u. Greely, 13 Mete. (Mass.) 284. A judicial sale is not void because made upon election day ; for such sale is not busi- ness of a court, within the statute prohibit- ing such business on election days. King V. Piatt, 37 N. Y. 155. An insurance company is not exempt from a tax imposed on corporations " doing business " in this state, on the ground they are no longer doing business, because they have discontinued issuing new policies, and are only engaged in coUectmg premiums and paying losses on old policies. Collect- ing premiums and paying losses is " doing business " within the meaning of the tax- laws. Smyth V. International Life Ass. Co. of London, 4 Abb. Pr. N. s. 11, 35 How. Pr. 126. Power " to do a general insurance agency, commission, and brokerage business, and such other things as are incidental to and necessary in the management of that busi- ness," does not give power to subscribe to the stock of a savings bank and building association ; and such a subscription, S made by the directors, is not binding on the corporation. Mechanics', &c. Savings Bank w. Meriden Agency Co., 24 Conn. 159; and see Sumner v. Marcy, 3 Woodb. ^ M. 105. Business corporation, as used in sec- tion 37 of the bankruptcy act of congress of 1867, is not merely synonymous with trading corporations, but has a broader meaning. It includes a railroad corpora- tion. Adams v. Boston, &c. R. R. Co., 1 Holmes, 30. See also Winter v. Iowa, &c. R. R. Co., 2 Dm. 487, and cases cited 5 Abb. Nat. Dig. 71, IT 431. It includes an insurance corporation. Re Independent Ins. Co., 1 Holmes, 103. A mutual life insurance company. Mat- ter of the Hercules Mut. Life Ass. Soc, 5 Am. L. T. R. 400; 16 Int. Rev. Rec. 148. Business hours. This phrase is de- clared to mean not the time during which a principal requires an employe's services, but the business hours of the community generally. Derosia v. Winona, &c. R. R. Co., 18 Minn. 133. BUTTALS. Same as Abuttals, q.v. BY. See Along. When descriptively used in a grant, by does not mean in immediate contact with. BY-BIDDING 176 BY-LAW but near to, the object to which it relates ; and near is a relative term, meaning, when used in land patents, very unequal and different distances. Wilson v. Inloes, 6 GUI, 121. The words by land of S, in a descrip- tion in a deed, have a known and definite meaning. They bound the grantee by the line of S's land. The word by does not mean over or across, but along the line of S's land; and such is both its legal and common acceptation. Feaslee v. Gee, 19 N. H. 273. A boundary " on a stream," or " by a stream," or " to a stream," includes the flats, at least to low-water mark, and in many cases to the middle thread of the river. It may be different where the boundary is "on the bank" of a river. Thomas v. Hatch, 3 iSumn. 170. A grant of land, bounded " by " or " on " a fresh-water stream, whether in fact capa- ble of navigation or not, conveys the soil usque ad medium JUum aquae, and of course conveys to the grantee the shore between high and low water mark. The Magnolia V, Marshall, 39 Miss. 109. The rights of a proprietor, bounded by a navigable river, extend to high-water mark ; but, if the river be unnavigable, to the middle of the stream. Bowman v. Wathen, 2 McLean, 376. A contract to deliver by a certain day, means not on, but on or before, the day. Coonley v. Anderson, 1 Hil!,{N. Y.) 519. A contract to complete a work by a par- ticular time, means that it shall be done before that time. Eankin v. Woodworth, 3 Pa. 48. In an agreement to stay proceedings in one case, until an issue be determined by final judgment in another, the word by means according to. Haubert o. Haworth, 78 Pa. St. 78. By may be used instead of to in the sen- tence, " a person whose name is not known to the complainant." Commonwealth v. Griffin, 105 Mass. 175. BY-BIDDING. A fraudulent prac- tice of making fictitious offers for prop- erty at auction; a device sometimes em- ployed on behalf of the owner or auc- tioneer, for the purpose of raising the price of the property, by leading bidders in good faith to make higher offers than otherwise they would. BY-LAW. Originally, by-laws were local laws or regulations made by per- sons or corporations duly authorized thereunto by charter, prescription, or custom, for the government of the in- habitants or a portion thereof, within some particular place or jurisdiction. They are distinguished from the rules of the common law (where that was not, by custoin, limited to a particular dis- trict or section), and from statute law, when general in its nature and opera- tion, in that the two former were attrib- utable to the sovereign power, and fur- nished a rule for the government of the people at large, while by-laws were regulations for the government of the inhabitants of a particular locality, em- anating from local authority only. In the earlier cases, the term by-law is used indifferently with reference to the regulations adopted by private cor- porations, and to the enactments made by public and municipal corporations. In the more recent adjudications, the word ordinance is more frequently used for the laws of municipal corpora- tions, and the term by-law employed with more especial reference to private companies. In this sense, the office of the by-law is to regulate the conduct and define the duties of the members towards the corporation and between themselves. For the definition of ordi- nance, as above used, see Ordinance. By-laws, or bye-laws, are laws made obiter, or by-the-by, such as are made in court- leets or court-barons, for the peculiar good of those who make them, farther than the common or statute law doth bind. The like are generally allowed by letters-patent of incorporation to any guild or fraternity, for the better regulation of trade among themselves, or with others. ( Termes de la Ley; Cowd.), At the present day, we ap- ply the expression to laws made by local boards, corporations, and companies, under powers conferred by acts of parliament: thus we speak of the by-laws of a bor- ough; of a railway company, &c. And, independently of statutory powers, by-laws made by a corporation aggregate are bind- ing on its members, unless contrary to the laws of the land, or contrary to and incon- sistent with their charter, or manifestly unreasonable. (1 Bl. Com. 475, 476; 3 Steph. Com. 12,13; Grant Corp.) Mozley The term by-law has a limited and pecul- iar meaning, and is used to designate such ordinances or regulations which a corpora- tion, as one of its legal incidents, has power to make with respect to its own members and its own concerns. This meaning has been somewhat extended in the case of municipal and other quasi corporations ; hut even here the word is used to designate such ordinances and regulations as have reference to legitimate and proper munici- pal or corporate purposes. Commonwealth V. Turner, 1 Cush. 493. A municipal by-law is a rule obligatory BY-ROAD 177 CABINET over a particular district, not being at rari- anoe with the general laws of the realm, and being reasonable and adapted to the purposes of the corporation ; and any rule or ordinance of a permanent character which a corporation is empowered to make, either by the common or statute law, is a by-law. Gosling w.Veley, 19 L.J.N. s. Q. B. 135. A by-law is a rule or law of a corpora- tion, for its government, and is a legisla- tive act, and the solemnities and sanction required by the charter must be observed. A resolution is not necessarily a by-law, though a by-law may be in the form of a resolution. Drake v. Hudson Eiver R. R. Co., 7 Barh. 508. A by-law of an incorporated company differs from a regulation in this, that the validity of the former is a judicial ques- tion, while that of the latter is matter in pais. Corapton v. Van Volkenburgh, 34 N. J. L. 134. A by-law has the same effect within its limits, and with respect to the persons upon whom it lawfully operates, as an act of parliament has upon the subjects at large. Hopkins v. Mayor, 4 Mee. ^ W. 621, 640. BY-ROAD. The statute law of New Jersey recognizes three different kinds of roads : a public road, a private road, and a by-road. A by-road is a road used by the inhabitants, and recognized by statute, but not laid out. Such roads are often called drift-ways. They are roads of necessity in newly settled countries. Van Blarcom v. Frike, 29 N. J. L. 516 ; see also Stevens v. Allen. Id. 68. c. C, the third letter of the alphabet, is sometimes used in a manner analogous to the use of A and B (y. u.), to dis- tinguish the third folio of a book or sub- division of a topic. It is also employed, and differently in different works, as an abbreviation, par- ticularly of such words as cases, civil, circuit, code, courts, criminal, and others; thus C. C. may stand for circuit court, or civil code, or criminal cases. It is often put in abbreviations of law-books, as an initial for the name of a reporter. It is said to have been customarily in- scribed on a ballot of condemnation in the Roman courts; standing then for condemno. C O. D. These letters are not cabal- istic, but have a determinate meaning. They import the carrier's liability to return to the consignor either the goods or the charges. United States Exp. Co. u. Keefer, 59 Ind. 263. OABALLERIA. A portion of lands granted to a Spanish horse soldier ; it was one hundred by two hundred feet. 12 Pet. 444, note. CABINET. Designates an advisory council of a sovereign or chief executive officer of a nation. In the organization of the United States government there is a cabinet, whose action and influence are of great practical importance; yet it exists, as a collective body, by custom and the will 12 of the president merely. The constitu- tion, taking it for granted that the busi- ness of the government would be dis- tributed in executive departments, pro- vides that the president may require the opinion in writing of the principal offi- cer in each of the executive depart- ments upon any subject relating to the duties of their respective offices, but leaves it wholly to congress to say what executive departments shall be created ; and it places the responsibility of official action upon the president, or upon the heads of departments as individual offi- cers; nowhere presenting them as a body authorized to decide questions by a vote of a majority of a quorum . From time to time, congress has created exec- utive departments, until there are now seven, — the state, war, treasury, jus- tice, post-office, navy, and interior. Rev. Stat. 158. And a practice has grown up, commencing from the time of Washington's administration, of the heads of these departments meeting in cabinet council, to confer upon the pub- lic business, and advise the president on questions of state. But neither the or- ganization of this body, nor any action it may take, is obligatory upon him. He has nnquestionable power to ask the counsel of other advisers ; or to overrule the opinion of the cabinet upon any CADET 178 CALENDAR subject within his sphere and duties as fixed by the constitution and laws. There is also the department of agri- culture, which is so called in the laws, it is understood, in order that its head may have the appointment of the subor- dinate oflicers in it, under Const, art. 2, § 2, subd. 2 ; but is not by law one of the executive departments, Kev. Stat. §§ 158, 159 ; and its head is not by cus- tom a member of the cabinet. In England, there is a similar council of high officers of state, advisory to the king or queen, in theory; though, prac- tically, these officers in their several functions administer the government, and hold the responsible charge. The composition of the English cabi- net has varied from time to time. For as in the United States, so in England, the cabinet has no legal existence as a body, and its composition depends on the will of the crown, — that is, practically, of the prime minister, — and the exercise of the power under different ministries has varied. It is said to have been the invariable practice that the following ministers should be members: The prime minister, as first lord of the treas- ury; the lord chancellor; lord president of the council ; lord privy seal ; and chan- cellor of the exchequer; and the secre- taries of state, of late, five, for the home department, foreign afEairs, war, colo- nies, and India.' In addition to these, from five to eight of the other ministers are usually admitted. CADET. A youth pursuing a course of study and drill, under official appoint- ment, to become an officer in the army, or sometimes the navy. In the United States laws, students in the military academy at West Point are styled cadets ; students in the naval academy at Annapolis, cadet midship- men. Rev. Stat. § 1309; Id. § 1512. CADXJCA. A civil-law term, desig- nating property of such kinds as de- scend; an inheritance. It is also said to include escheats ; but this is probably because inheritable property escheats, where there are no heirs, and is not really a different meaning of the word. C^TERARUM. Of the rest. Ad- ministration granted as to the residue of an estate, after a limited administration of a portion of it, is termed administration ceterarum. It differs from administra- tion de bonis non (q. v.), in which full power to administer has been granted, but for some cause not exercised. CALENDAR, 1. The order and series of years, months, and days, by which the course of time is convention- ally marked ; also, a formal exhibit or table, marking the course of time by years, months, days, &c. The chief calendars of the solar year, now in use, are the following: The Julian year, so called because Julius Csesar introduced into the Koman empire the solar or Egyptian year, instead of the lunar year. The Russians and Greeks are the only nations that now use the Julian year. The common Julian year consists of three hundred and sixty-five days, and the bissextile, which returns every four years, of three hundred and sixty-six days. This computation is faulty, inasmuch as it allows three hundred and sixty-five days and six entire hours for the annual revolu- tion of the sun, being an excess every year of 11', 14", 30'", beyond the true time. This, in a course of ages, had amounted to several days, and began at length to de- range the order of the seasons. Gregory XIII. caused a new calendar to be drawn up, which is called the Gregorian year; and because the civil year had gained ten days, he ordered, by a bull pub- lished in 1581, that these days should be expunged, so that instead of the 5th of October, 1582, it should be reckoned the 15th. The CathoUc states adopted this new calendar, but the Protestants and the rest of Europe adhered to the Julian ; and hence the distinction between the old and new style, to which it is necessary to attend in public acts and writings following 1582. The difference until 1699 was ten days, and eleven from 1700, and twelve days must be reckoned during 1800. The January Ist of the old style answers to the 13th of the new. The reformed calendar differs from the Gregorian as to the method of calculating the time of Easter, and the other movable feasts. The Protestants of Germany, Hol- land, Denmark, and Switzerland adopted this in 1700, Great Britain In 1752, Sweden in 1753 ; but, since 1776, the Protestants of Germany, Switzerland, and Holland have adopted the Gregorian. In England, the year used to commence on the 25th of March, untU 1753, when, by the 24 Geo. II. eh. 23, ' the beginning of the year was transferred to the 1st of January, and the 3d of Sep- tember, 1752, was reckoned the 14th of the ■ same month, in order to accommodate the English chronology to the new style. Wharton. 2. A list; a written enumeration by CALENDS 179 CALL names. In the practice of most courts, the clerk prepares, before the session, a list or written statement of the causes awaiting trial or argfument, as made known to him by memoranda furnished by the attorneys, arranging them in the order in which they will have priority. This list is furnished to the presiding judge, and at the opening of the court each day he calls the causes, as they appear on it, for such disposition as may be proper. This list is called, in the parlance of some jurisdictions, the calendar; in others, the docket. Some other lists, used in the administration of judicial business, are known as cal- endars. Calendar month. A phrase desig- nating the months as known by distinc- tive names, January, February, &c., as distinguished from lunar month, which is one periodical revolution of the moon, being twenty-eight days. CALENDS. Among the Bomans, was the first day of every month, being spoken of by itself, or the very day of the new moon, which usually happen together ; and if pridie, the day before, be added to it, then it is the last day of the foregoing month ; t\\.VLS pridie calend. Septemh. is the last day of August. If any number be placed with it, it signifies that day in the former month which comes so much before the month named ; as the tenth calends of Oc- tober is the twentieth day of September ; for if one reckons backwards, begining at Oc- tober, the twentieth day of September makes the tenth day before October. In March, May, July, and October, the calends begin at the sixteenth day, but in other months at the fourteenth ; which calends must ever bear the name of the month fol- lowing, and be numbered backwards from the first day of the said following months. (Hoptm's Concord, 69.) Jacob, CALL. 1. In the language of con- veyancing, particularly in the United States, the requirements of a deed, mortgage, &c., for various natural ob- jects or landmarks, by which the de- scription may be applied or traced out, are termed the calls. 2. In the management of stock cor- porations, payment of subscriptions for shares is usually made in successive in- stalments, upon notice issued by the di- rectors requiring the payments to be made. These notices or demands, ema- nating from the board to the subscrib- ers, and requiring payments on account of shares, are termed calls ; particularly in English usage. In American books, assessment (g. w.) is more commonly used to express nearly the same idea. That a circular letter sent to every shareholder in a railway company, inform- ing him that the directors have resolved on making a call, constitutes the call, see Shaw V. Eowley, 16 Mee. ^ W. 810, 5 Eng. Railw. Cos. 47 ; Newry & Enniskillen Rail- way Co. V. Edmunds, 6 Eng. Railw. Cas. 275. That a resolution of the board of direc- tors of a railway company that a call be made, is the call, see Exp. Tooke in re Lon- donderry & Coleraine Bailway Co., 6 Eng, EaUw, Cos. 1. That a call may mean either the resolu- tion or its notiflcation, or the time when it is payable, see Ambergate, &o. Railway Co. V. Mitchell, 6 Eng. Railw. Cas. 236, 4 Exch. 640. Call of the house. The proceeding of calling over the names of members in a house of a legislative body, pursuant to a resolution of the house ordering the attendance of the members thereof, after which attendance may be en- forced, or non-attendance punished. Calling the jury. In the ordinary practice of courts employing jury trial, when a cause is ready, the first step is to call a jury; which proceeding con- sists in successively drawing out of a box, into which they have been pre- viously put, the names of the jurors summoned for that session of the court, and calling them over in the order in which they are so drawn; and the twelve persons whose names are fi^rst called, and who appear, are sworn as the jury; unless some just cause of chal- lenge or excuse, with respect to any of them, is shown. Calling the plaintiff, is a phrase sy- nonymous with granting a nonsuit. It is the privilege of a plaintiff, when he, that is to say, his counsel, apprehends that the evidence given on his part is insufficient to establish a case, and pre- fers not to risk the event of an adverse verdict which would determine the issue finallysagainst him, to decline to proceed ; and this has been done by the form of a fictitious withdrawal. Under this prac- tice, the crier is directed by the presiding judge to "call the plaintiff." No an- swer being made, the trial is at an end; the jurors are discharged, the defendant enters judgment of nonsuit and for his CALUMNIA 180 CANT costs. 3 Bl. Com. 376. This judgment, however, does not prevent bringing a second action, if plaintifE can gather more satisfactory evidence. The for- mality of a call upon the plaintifE before entering a nonsuit is disused in some jurisdictions ; New York, for instance. Calling to the bar. A phrase more common in England than in this coun- try, equivalent to admitting to practice. It is the act of investing a student of law with the office of barrister or coun- sellor. The day in each term set apart for the ceremony of calling students to the bar is known as call-day. CALUMNIA. Calumny. 1. In the civil law, a false accusation; a mali- cious prosecution. The phrase calum- nicE jus-jurandum, the oath of calumny, was frequently used to denote an oath imposed upon the parties to a suit, that they did not sue or defend calumniando animo, i.e., with a malicious design, but in the belief that they had a good cause. A similar oath in the canon law was termed calumnicB juramentum. 2. In the old common law, a claim, demand, challenge to jurors. CAMPERS. A share. Used in old English statutes in the sense of a par- ticipation in the division of any prop- erty, especially land, in consideration of maintaining a suit for such property. See Champerty. CANCEL. To obliterate, nullify, strike out of existence; to efiace, erase, or expunge. When used of instru- ments, it presents the idea of signifying, by lines or marks upon the face of the document, that it is no longer operative, without, however, destroying the sub- stance of the paper; but is not always confined to this sense. Cancelling: the act of obliterating, or striking out. Can- cellation is used as a synonyme of can- celling; also, to signify the condition of any thing which has been obliter- ated. Cancel means doing away with. Winton V. Spring, 18 Cal. 451. Whether striking a mere cross upon an internal revenue stamp, omitting to write initials and date, is a sufficient way to can- cel the stamp, see Ballard v. Bumside, 49 Barb. 102. An agreement to cancel the indebtedness of another implies an undertaking to pay it; for the agreement to cancel must be held to include a promise to do whatever j shall be necessary to affect the cancellation.^^ Auburn City Bank v. Leonard, 40 Barb. 119. ., CANON. 1. A law, rule, or ordi-"*' nance, used in a general sense ; also, particularly, a rule or precept of eccle- siastical law. 2. One of the dignitaries of the Eng- lish church ; a prebendary or member of a chapter. Canon law. A body of ecclesiastical law derived from ordinances and decrees of Roman Catholic councils and popes ; depending in Catholic countries on the authority of the church, and in England on a qualified statutory adoption ; as to which see Stat. 25 Hen. VIII. ch. 19; 1 Eliz. ch. 1. The canon law consists partly of certain rules taken out of the Scripture, partly of the writings of the ancient fathers of the church, partly of the ordinances of general and provincial councils, and partly of the decrees of the popes in former ages; and it is contained in two principal parts, — the decrees and the decretals. The decrees are ecclesiastical constitutions made by the popes and cardinals. The decretals are canonical epistles written by the pope, or by the pope and cardinals, at the smt of one or more persons, for the ordering and deter- mining of some matter of controversy, and have the authority of a law. As the de- crees set out the origin of the canon law, and the rights, dignities, and decrees of ec- clesiastical persons, with their manner of election, ordination, &c., so the decretals contain the law to be used in the ecclesias- tical courts. Jacob. The canon law is a body of Roman ec- clesiastical law, compiled in the twelfth, thirteenth, and fourteenth centuries, from the opinions of the ancient Latin fathers, the decrees of general councils, and the de- cretal epistles and bulls of the Holy See. (1 Bl. Com. 82; 1 Steph. Com. 64.) In the year 1603, certain canons were enacted by the clergy under James I. But, as they were never confirmed in parliament, it has been held that, where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity, whatever regard the clergy may think proper to pay them. (1 Bl. Com. 83; 1 Steph. Com. 66, 67.) Mozleg i- W. Canons of descent, or of inheri- tance. The legal rules by which in- heritances are regelated, and according to which estates are transmitted by de- scent from the ancestor to the heir; the rules for determining descents. CANT, or licitation, is a mode of di- CAPACITY 181 CAPIAS , viding property held in common by two or more persons ; and may be avoided by the consent of all those who are interested, in the same manner that any other contract or agreement may be avoided, which is en- tered into by consent of parties. Hayes v. Cuny, 9 MaH. (La.) 87. CAPACITY. Power; competency; qualification. In strictness, power or ability, in law, to take ; but used more extensively to signify a qualification or power to do various acts. Thus, testa^ mentary capacity (j. u.), and capacity to contract, are common phrases for the mental ability required by law for the making of a will or contract. And when a person does an act in virtue of some particular office, function, or char- acter, with which he has been invested by law, as that of sherifi, executor, di- rector, or the like, he is said to do it in the capacity of sheriff, executor, &c. Capaz doU. Capable of wrongful intent. Having capacity to commit crime. Any person who has sufficient mind and understanding to be held criminally responsible for offences is termed capax doli. The question arises -most frequently in regard to children, and their ability to distinguish between what is lawful and what is unlawful. CAPIAS. That you take. The name of a writ directed to the sheriff in ac- tions at common law, commanding him to take the defendant named in it intb custody; so termed from the emphatic word in the Latin form of the writ. The different kinds of writs for arrest were distinguished by the terms capias ad respondendum, capias ad satiifacien- dum, &c. ; but the capias ad responden- dum (q. V.) is frequently termed simply a capias. Capias ad respondendum. That you take to answer. The name of a writ directed to the sheriff in actions at com- mon law, commanding him to take the defendant, and him safely keep, so that he may have his body before the court on a certain day, to answer the plaintiff in the action; so termed from the em- phatic words in the Latin form of the writ. Actions at law were commenced by the issue of this writ. Its effect, originally, was to detain the defendant in custody, according to its terms; and this practice continued until the taking of bail was introduced, for the purpose of mitigating the hardships of confine- ment. Later, the cases in which arrests should be actually made were defined and restricted by various statutes ; and in other cases the writ was of effect only to bring the defendant into court. The abbreviation ca. resp. is sometimes used to designate the writ. Capias ad satisfaciendum. That you take to satisfy. The name of a writ directed to the sheriiE in actions at common law, commanding him to take the party named, and him safely keep, so that he may have his body be- fore the court on a certain day, to sat- isfy the damages awarded to the adverse, party by a judgment; it was so termed from the emphatic words in the Latin form of the writ. It is a writ of execu- tion, issued after judgment ; and was formerly allowed in all cases where a capias ad respondendum had been issued. Its effect was to detain the party against whom it issued (who might be either the plaintiff or defendant in the action) in custody, until he made the satisfac- tion awarded ; and no other process against his lands or goods could issue after his arrest under this writ. But the use and effect of the writ have been , much restricted and modified by stat- utes abolishing imprisonment for debt, or facilitating the discharge of debtors from custody. The abbreviation ca. sa. is very commonly used to designate the writ. Capias in 'withernam. That you take in reprisal. The name of a writ directed to the sheriff, commanding him to take other goods of a distrainor, equal in value to the distress formerly taken by such distrainor and withheld by him ; so termed from the emphatic words of the Latin form of the writ, unthernam, signifying another taking; a distress in reprisal. The writ issued when chattels distrained were alleged to have been wrongfully taken, and were by the dis- trainor taken out of the county, or con- cealed, so that the sheriff could not take them in replevin. Upon the sheriff's return to the writ of replevin, this writ issued to take other goods of the dis- trainor, thus putting distress against distress ; and chattels taken in wither- CAPIAS 182 CAPITAL nam were irrepleviable until the original distress was forthcoming. The writ also issued where, after judgment for the defendant in replevin, the sheriff made return to the usual writ of execution, de retorno habendo, that the goods were eloigned, so that he could not execute the writ. In such oases a capias in withernam issued, commanding the sheriff to take other goods of the plaintiff to the value of the goods eloigned, and deliver them to the de- fendant, to be kept by him until the plaintiff deliver the goods originally replevied. Capias pro fine. That you take for the fine. The name of a writ directed to the sheriff, commanding him to take a party upon whom a fine had been im- posed by a judgment, and keep him in custody until he discharged the fine ac- cording to the judgment. Such a fine was imposed upon a party in many cases, — such as forcible torts, unjustly claim- ing property in replevin, denial of one's own deed, &c., — which were deemed to partake of the nature of a public mis- demeanor as well as of a private injury. In such cases the words capiatur pro Jine, — let him be taken for the fine, — were inserted at the end of the judgment record; and this writ issued to enforce payment of the fine by arrest and im- prisonment. CapiaB utlagatum. That you take the outlaw. The name of a writ di- rected to the sheriff in an action at common law, commanding him to take a party who had been outlawed in the action, and him safely keep until the return-day, and then to have him before the court, there to be dealt with for his contempt. The writ issued after the capias ad respondendum, to compel an appearance by a defendant who had absconded, so that the service of the previous writ could not be made. The outlawry was readily reversed upon the appearance of the party. The writ issued after an outlawry in a criminal as well as a civil case. It sometimes contained a clause commanding the sheriff to take possession of the goods and chattels of the outlaw, and to sum- mon a jury to determine their value. CAPITA. See Caput. CAPITAL. 1. As applied to offences, capital signifies those punishable by death. That punishment itself is also termed capital. The use of the term may probably have arisen, it is said, from the decapitation which, in former times, was a common mode of executing the sentence of death, and which is pre- scribed in some English statutes against traitors even now remaining in force. The extreme sentence of the law, how- ever, has for many years been carried into effect against all offenders by hang- ing them by the neck. The offences which are still capital offences have, by the humane spirit of modern legislation, been recently much diminished in Eng- land. Quite lately the list included high treason, murder, rape, and unnat- ural offences ; setting fire to any king's ship or stores ; the causing injury to life, with intent to commit murder ; burglary, accompanied with an attempt at murder; robbery, accompanied with stabbing or wounding; setting fire to a dwelling- house, any person being therein; setting fire to or otherwise destroying ships, with intent to murder any person ; ex- hibiting false lights, with intent to bring ships into danger; piracy, accompanied by stabbing; and riotous destruction of buildings. But, at the present day, the only offences punishable with death are treason and murder; all other offences formerly capital being now punishable with penal servitude for life or years, or some term of imprisonment. In the several States, the death pen- alty is confined, as a general rule, to treason, murder, arson, and rape. 2. In reference to property, capital signifies the money, property, or stock invested in any business, or in the en- terprise of any corporation or institu- tion. Different statutes of the federal and state governments require licenses to be obtained for the carrying on of certain branches of business, impose taxes on the capital employed, limit the amount of the capital stock, and subject the latter to certain liabilities; hence, various decisions have arisen as to what constitutes such capital, or capital stock. Capital, in political economy, signifies that portion of the produce of industry ex- CAPITAL 183 CAPITAL isting in a country, which may be made directly available either for the support of human existence, or the facilitating of pro- duction. In commerce, and as applied to individuals, it is understood to mean the Bum of money which a merchant, banker, or trader adventures in any undertaking, or which he contributes to the common stock of a partnership ; also, the fund of a trad- ing company or corporation. (McCulloch.) Wharton. Capital signifies the actual estate, whether in money or property, which is owned by an individual or corporation. When used with reference to a corporation, it means the ag- gregate of the sum subscribed and paid in, or secured to be paid in by the sharehold- ers, with the addition of profits on the resi- due after the deduction of losses. The terms capital and capital stock, as used in provisions of N. Y. Rev. Stat., regulating taxation of corporations, are synonymous. People V. Commissioners of Taxes, 23 N. Y. 192. The capital of a corporation which is subject to taxation is the fund upon which it transacts its business, wluch would be liable to its creditors, and, in case of insolvency, pass to a receiver. In- ternational Life Assurance Society v. Com- missioners of Taxes, 28 Barb. 318 ; and see Abb. Dig. Corp. tit. Capital. The term capital of a banker does not include money borrowed temporarily in the course of business, but only the property or funds of the banker set apart from other .uses. Bailey v. Clark, 21 Wall. 284. The capital of a bank embraces all its property, real and personal. New Haven V. City IJank, 31 Conn. 106 ; State Bank v. Brackenridge, 7 Blackf. 395. Capital, as used in the act of congress of June 30, 1864, subd. 1, § 79, relating to the licenses of bankers whose capital exceeds certain suras, means the amount of capital fixed by charter, when they have one, and cannot be construed to cover surplus earn- ings. Mechanics', &c. Bank v. Townsend, 5 Blatchf. 315. A statute declaring money or stock cor- porations, deriving any income or profit from their capital, liable to taxation upon their capital, was held to mean not net profits, but any income, even if less than the expenses. People v. Supervisors of N. Y., 18 Wend. 605. Capital stock, as employed in acts of incorporation, is never used to indicate the value of the property of the company. It is very generally, if not universally, used to designate the amount of capital pre- scribed to be contributed at the outset by the stockholders, for the purposes of the corporation. The value of the corporate assets may be greatly increased by surplus profits, or be diminished by losses, but the amount of the capital stock remains the same. The funds of the company may fluctuate ; its capital stock remains invari- able, unless changed by legislative author- ity. State V. Morristown Fire Assoc, 23 M. J. L. 195. It is the amoimt of shares subscribed, and not the sums actually paid in, which constitutes the capital stock of a company. Hightower v. Thornton, 8 Ga. 486. The capital stock of a bank, upon which, under the banking law of Wisconsin, a cer- tain per cent is to be paid annually in lieu of all other taxation, is the amount of funds paid in by the stockholders to.be used by the banking association for banking pur- poses. The accumulated profits of a bank, which have never been divided among the stockholders, but have been retained for banking purposes, are not a part of its cap- ital stock in such a sense as to be exempt from the general rules of taxation applicable to other taxable property. State Bank of Wisconsin!;. City of Milwaukee, 18 Wis. 281. Under an act imposing a tax on certain dividends, whenever such " dividends shall exceed six per cent per annum on the cap- ital stock," the capital stock is that paid in, and not the full amount of its authorized capital. Philadelphia v. Gray's Perry, &c. R. R. Co., 52 Pa. St. 177. A limit imposed upon the capital stock of the corporation does not operate as a limitation of the amount of property which it may own, either real or personal, or of the amount of its liabilities or outstanding obligations, but is rather regarded as the sum upon which calls may be made upon subscribers, and dividends are to be paid to stockholders. Barry o. Merchants' Ex- change Co., 1 Sandf. 280. The capital stock of a corporation, which is deemed a trust fund for the payment of corporate debts, includes the entire sum agreed to be contributed towards the enter- prise by the shareholders, whether actually paid in or not. But it does not include ad- ditions made from profits realized from the business. Held v. Eatonton Mauuf. Co., 40 Ga. 98. Capital stock, as used in Illinois revenue law, with respect to the assessment of cor- porations, means all the property belonging to a corporation, whether tangible or intan- gible, and of whatever nature or kind, and it must be valued under this designation for the purpose of taxation. Pacific Hotel Co. 0. Lieb, 83 III. 602. A statute exempting the capital stock of a railroad company from taxation was held to mean the capital to be raised by subscrip- tions to the stock, and not to include lands granted by congress to aid the road. St. Louis, &c. Railway v. Loftin, 30 Ark. 693. 3. Capital also signifies the chief city, in the political sense, of the state; the seat of governmenf ; the place where the public business of a sovereignty is car- ried on ; and is to be distinguished from capitol, which signifies the particular building at the capital, devoted to the governmental business. CAPITALIS 184 CAPTURE CAPITALIS JUSTIOIARIUS. Chief justice. There were the chief jus- tice of England, who presided in the court of curia regis, was an officer of great dignity, and used, in the king's absence, to govern the kingdom; also the following: CapitaliB justiciarius ad placita coram rege tenenda. This title was substituted, during the latter part of the reign of Henry III. , for the above title of capitalis justiciarius (totius Anglice), and its possessor was the chief justice of the king's bench. Capitalis justiciarius band. The old title of the chief justice of the bench, subsequently tjie court of common pleas. CAPITATION. A tax laid upon persons as individuals, irrespective of property; a poll tax, or direct tax. Thus the constitution of the United States provides, art. 1, § 9, cl. 4, that " no capitation or other direct tax shall be laid, unless in proportion to the cen- sus, or enumeration," &e. CAPITULA (plu.). A term of the civil and the old English law, corre- sponding nearly to our " schedules." Capitula itineris. Schedules deliv- ered to the justices, setting out the crimes which were to be the subject of their inquiry on their circuits. CAPTAIN. In military usage, the commander of a company of soldiers. In maritime usage, properly an officer of the navy, ranking, in the United States service, between a commander be- low and a commodore above. The pop- ular use of the term for the officer first in command of a merchant vessel is not approved in law, but the name mas- ter is preferable. CAPTION. 1. A taking or seizure; an arrest. 2. The formal heading of a legal doc- ument, in which the circumstances of its origin are set forth. This use of the word has been disapproved by literary critics as not warranted by the deriva- tion (which is not from caput, a head, but from captio, a taking); but it is very common in law-books. When used with reference to an indict- ment, caption signifies the style or pream- ble or commencement of the indictment; when used with reference to a commission, it signifies the certificate to which the com- missioners' names are subscribed, declaring when and where it was executed. Brown. In Scotch law, caption is an order to in- carcerate a debtor who has disobeyed an order, given to him by what are called " letters of horning," to pay a debt or to perform some act enjoined thereby. BeU. CAPTOR. One who seizes or takes property from an enemy in time of war, particularly at sea ; also, one who takes an enemy. CAPTURE. A taking by one bellig- erent of the property of another. More particularly, the taking of a vessel or property of an enemy, at sea, as a prize. Capture may be with intent to possess both ship and cargo, or only to seize the goods of the enemy, or contraband goods, which are on board. The former is the capture of the ship in the proper sense of the word ; the latter is only an arrest and detention, without any design to deprive the owner of it. Capture is deemed lawful when made by a declared enemy lawfully commissioned and according to the laws of war ; and unlawful, when it is against the rules established by the law of nations. Marsh. Ins. book 1, ch. 12, § 4. Capture, in technical language, is a tak- ing by military power ; a seizure is a tak- ing by civil authority. United States v. Athens Armory, 35 Ga. 344. In order to constitute a capture, some act must be done indicative of an intention to seize and to retain as prize ; it is suffi- cient if such intention is fairly to be in- ferred from the conduct of the captor. The Grotius, 9 Cranch, 368. It is not strictly necessary to a complete capture that the prize should be carried within the territory of the captors, and there condemned. Moxon v. The Fanny, 2 Pet. Adm. 309. Boarding and destroying a frigate under peremptory orders to set her on fire, and after blowing out her bottom to abandon her, was held not a capture. The duty performed was that of destruction, not of capture. Decatur t. United States, Dev. 33; /rf. 201. Capture, as used in a policy of marine insurance, means a seizure as prize, with the intent or expectation of obtaining a condemnation. Bichardson u. Maine Ins. Co., 6 Mass. 102. The taking of a ship with intention to make prize of her, as is proved by her be- ing libelled as prize, is a capture, within the principles laid down by eminent writers. Lee V. Boardman, 3 Mass. 288. The words capture, detention, &c., In the memorandum in a policy, mean illegal seiz- ure, arrest, &o. Archibald c. Mercantile Ins. Co., 8 Pick. 70. Capture, as used in contracts of marine insurance, embraces a taking by pirates. Dole V. Merchants' Mut., &c. Ins. Co., 51 Me. 465. CAPUT 185 CARGO Capture includes every species of taking by force and violence from without, to which a vessel may he exposed during a voyage ; whether by a lawful government in the exercise of belligerent rights or the enforcement of municipal laws, or by mere pirates, or by vessels sailing under a pre- tended but illegitimate authority, such as cruisers of the so-called confederate states, during the civil war. Dole v. New England Mut. Mar. Ins. Co., 6 Allen, 373. CAPUT. This Latin word, meaning head, is used in old law language much as head in its figurative sense is used at the present day, to signify a chief, or one occupying the first place in aflairs ; also, in the civU law, it stood for the person, and for the status of a person enjoying full civil rights. Caput lupinum. Was anciently ap- plied to an outlawed felon, in that he might be knocked on the head like a wolf. 4 Bl. Com. 320. Capitis dimiuutio. Loss of personal condition. Reduction to a lower civil rank. Capite. By the head. Tenure in capite was an ancient feudal tenure, whereby a man held lands of the king immediately. It was of two sorts, the one, principal and general, or of the king as the source of all tenure ; the other, special and subaltern ; or of a particular subject. It is now abol- ished. Jacob. Cab. Lawyer. Per capita. By heads; that is, as individuals. This phrase is most fre- quently used in reference to the distribu- tion of estates. When all the persons interested stand in equal degree of kin- dred, and take equal shares, they are said to take per capita. If some, being children of a deceased heir or distrib- utee, are entitled only to take the share of their parent, to be divided amongst them, they are said to take per stirpem; or, if several families so situated are in- volved in the thought, per stirpes. In the distribution of the personal estate of a person dying intestate, the claimants, or the persons who by law are entitled to such personal estate, are said to take per capita when they claim in their own rights as in equal degree of kindred, in contradis- tinction to claiming by right of representa- tion, or per stirpes, as it is termed. Thus, if the next of kin are the intestate's three brothers. A, B, and C, his efEects are divid- ed into three equal portions, and distributed per capita, one to each; but if A (one of these brothers) is deceased, and has left three children, and B (another of these brothers) is dead, and has left two, then the distribution will be by representation, or per stirpes, as it is termed, and one-third of the property will go to A's three chil- dren, another third to B's two children, and the remaining third to C, the surviving brother. Brown. CABE. This word is generally used in jurisprudence in the sense of atten- tion, heed, vigilance, watchfulness: its oppbsites being carelessness, heedless- ness, negligence, rashness. The deci- sions defining its meaning have arisen mainly in cases involving the duties and liabilities of carriers, bailees, profes- sional persons, &c., and turn almost uniformly on the question of negligence, for the definition of which, and decisions thereon, see Negligence. There are different degrees of care, the several meanings of which, as defined by vari- ous courts in this country, seem to be as follows: Slight care is such as is usually exer- cised by persons of common sense, but careless habits, under circumstances similar to those of the particular case in which the question arises, and where their own interests are to be protected from a similar injury. 20 JV. Y. 65; 6 Duer, 638; 3 E. D. Smith, 98; 8 Ohio St. 1; Id. 570, 581; 3 Allen, 38; 1 Id. 9, 15; 8 Gray, 123, 131; 17 Cal. 97. Ordinary care is such as is usually exercised in the like circumstances by the majority of the community, or by persons of careful and prudent habits. 35 N. Y. 9, 27; 11 Ired. L. 640. Great care is such as is exercised under such circumstances by persons of unusually careful and prudent habits. 8 Barb. 368, 379; 31 Pa. St. 512; 20 N. Y. 65; 6 Buer, 633. See Dili- gence. Ordinary care is not only such care as people in general would exercise, but such as they would exercise under the circum- stances of each particular case. State v. Railroad, 52 N. H. 528. The phrase, utmost care and diligence, means all the care and diligence possible in the nature of the case. Baltimore & Ohio R. R. Co. V. Worthington, 21 Md. 275. Want of care, when used in instructions to a jury, means want of reasonable and proper care. Warner v. Dunnavan, 28 lU. 380. CARGO. Merchandise laden on a vessel for transportation by water. Cargo means goods on board of a vessel. Seamans v. Loring, 1 Mas. 127, 142. CAKNAL 186 CART A cargo is the loading of a ship or other vessel, the hulk of which is to he ascer- tained from the capacity of the ship or vessel. The word embraces all that the vessel is capable of carrying. Flanagan v. Demarest, 3 Robt. 173. Live animals, their provender, their freight, and goods laden on deck, are not covered; but coin, to be invested by the master for the owner, its freight, and the safe transportation of the insured's own goods in his own vessel, are covered under the general terms cargo and freight. Wol- cott V. Eagle Ins. Co., 4 Pick. 429. Cargo, in a policy of insurance, does not ordinarily cover live-stock ; but if live-stock constitute the only article of exportation from the port from which the vessel is to sail, to the port to which she is destined, or if, according to the mercantile usage of the place of effecting the insurance, the word is understood to cover live-stock, then an insurance under that general de- nomination will cover it. AUegre v. Ins. Co., 2 Gill Sr J. 136. See Chesapeake Ins. Co. V. AUegre, Id. 164. Cargo covers oil and other products of a whaling voyage. Paddock v. Franklin Ins. Co., 11 Pick. 227. Cargo is not of such common occurrence in English policies of insurance as with us. They use, in lieu thereof, the words " goods and merchandise." But it is a word of a large import, and means the lading of the ship, of whatever it consists. In a policy on a whaling vessel, cargo might, upon proof of usage so to understand it, be held to cover outfits as well as catchings. Macy V. Whaling Ins. Co., 9 Mete. (Mass.) 854, 367. CARNAL KNOWLEDGE. The technical term for the act of the man in sexual intercourse; but generally used of unlawful intercourse. Carnal knowledge and sexual intercourse held equivalent expressions. Noble v. State, 22 Ohio St. 541. That carnal knowledge or carnally knew is a proper and necessary term in an indict- ment for rape, see Commonwealth v. Squires, 97 Mass. 59. CARRIAGE. In the sense of a vehi- cle, is not always confined to any one class or description of vehicles : it is often used as a generic term, for that which carries. As used in N. H. Eev. Stat. ch. 57, rela- tive to damages against towns for defective highways, carriage is evidently intended to include whatever carries the load, whether upon wheels or runners, and also that wliich is carried, whether on wheels or runners, or on horseback. Conway v. Jefferson, 46 iV..ff. 521. By statute, in New York, carriage, as used in Rev. Stat. pt. 1, ch. 20, tit. 13, relative to the law of the road, &o., includes stage-coaches, wagons, carts, sleighs, sleds, and every other carriage or vehicle used for transportation of persons or goods. 1 Bev. Stat. 696, § 7. CARRIER. One vrho undertakes the transportation of persons or movac ble property. Carriers are called common or private ; the latter being persons who undertake for the transportation in a particular instance only, not making it their voca- tion, nor holding themselves out to the public ready to act for all who desire their services. As to common carriers, see CoMMOK Carrier. Carrier of the mail. This term, in U. S. Eev. Stat. § 3980, — directing any carrier of the mail to receive any mail matter pre- sented to him, &c., — includes a city letter- carrier employed under § 3865. Wynen v. Schappert, 6 Daly (N. Y.) 558. CARRY. In a statute punishing the carrying concealed weapons, is equivalent to bear. Locomotion is not essential to constitute a carrying under such a statute. Owen w. State, 31 Ala. 387. Carrying away. A phrase used in criminal law to denote such a taking or removal of personal property as is re- quired to constitute larceny; for carry, in the sense of bear, is not enough to complete the offence. There must be a removal; and this is expressed by the addition of away. The words '"did take and carry away" are a translation of the words cepit et aspor- tavit, which were used in an indictment while legal processes and records were in the Latin language. But no single word in our language expresses the meaning of aspartant; hence the word away, or some other word, must be subjoined to the word carry, to modify its general signification and give it a special and distinctive mean- ing. Commonwealth v. Adams, 7 Grai/, 443. Carrying costs. When a party in whose favor a verdict is given becomes entitled to the payment of his costs as incident to such verdict, the verdict is said to carry costs. Carrying on. Under the Alabama rev- enue law of 1868, requiring a person " en- gaging in or carrying on business " to ob- tain a license therefor, a single act pertaining to a particular business will not constitute the " engaging in or carrying on " the busi- ness. Weil V. State, 52 Ala. 19. Selling an occasional drink out of a bot- tle is not carrying on the business of a retail liquor-dealer. United States v. Jack- son, 1 Hugh. 331. - CART. A vehicle with fou;- wheels, drawn by oxen, suited to the ordinary pur- poses of husbandry, and employed in the CARTA 187 CASE same uses to which carts, in the common acceptation of the term, are appropriated, is protected from levy and sale by the stat- ute which exempts " one horse or ox cart " from execution. Favers v. Glass, 22 Ala. 621 ; s. p. Webb v. Brandon, 4 Heish 285. Though lexicographers define " cart " to be a vehicle with two wheels, and " wagon " one with four, yet an exemption of one ox-cart from execution is not necessarily limited to a two-wheeled vehicle; even though the same statute exempts a horse wagon. A four-wheeled vehicle drawn by oxen may be allowed. Webb v. Brandon, 4 Beisk. 285. CARTA. See Chauta. CARTE BLANCHE. White paper. From a practice of giving an agent of absolute powers a sheet of blank paper, having the principal's signature at the foot, over which the agent may write any engagement he thinks fit, any person having full authority to act for another in any matter is said to have carte blanche as to such matter. CARTEL. An agreement between hostile states relating to exchange of prisoners. Cartel ship. A vessel employed in making exchanges of prisoners, or other negotiations, in war. CASE. 1. An action, suit, or cause. A state of facts involving the decision of a question of law or fact. In this sense, the word frequently occurs in such phrases as civil and criminal cases; cases at law or in equity; capital cases; trying the case; submitting the case; and the like. Compare Cause. The primary meaning of case is cause. When applied to legal proceedings, it im- ports a state of facts which furnishes occa- sion for the exercise of the jurisdiction of a court of justice. In its generic sense, the word includes all cases, special or other- wise. Kundolf V. Thalheimer, 12 N. Y. 592, 59B. Cases ihcludes causes and special pro- ceedings, and is more commonly used as including equity as well as common-law ac- tions than causes is. Benson v. Crom- well, 26 Barb. 218, 6 Abb. Pr. 83. See also Special Case. An affidavit of merits which avers that the affiant has fully, &c., stated " the facts of this case," is sufficient; for it implies that he has stated all the facts which make the whole case. Jordan v. Garrison, 6 How. Pr.Q. But one which only avers that he has fully, &c., stated "the facts of his case," or his case in this cause, is insufficient ; for this means no more than a statement of the facts of his side of the cause, or, in other words, his defence. Fitzhugh v. Truax, 1 Hill, 644; Ellis v. Jones, 6 How. Pr. 296. Cases, as used in article 3, section 2, of the United States constitution, — extending the judicial power of the United States to eases in law and equity, cases affecting ambassadors, and cases of admiralty juris- diction, — means contested questions before courts of justice ; suits or actions. It means that the judicial power shall extend to certain actions, wherein, according to the forms of law, the rights of parties are presented for adjudication. The word con- troversies, used in another part of the sec- tion, is broader in its meaning. To create a case in the legal sense expressed by the term, proceedings are necessary. When we speak of a case at law, in chancery, or in admiralty, we mean a judicial question submitted to a court of one jurisdiction or another, according to the form of procedure prescribed by law. Home Ins. Co. v. North- western Packet Co., 32 Iowa, 223. The terms " cases in law, equity, and of admiralty jurisdiction," are used in the con- stitution, the judiciary, and process acts, according to the jurisprudence of England ; defining them, in contradistinction to each other, by the rules and principles of the common law, as adopted and in force in the several states at the revolution, or the adoption of the constitution, and passage of the acts of congress of 1798. Baker v. Biddle, Baldw. 394; Bains v. The James & Catharine, Id. 544. The word case, as used in the provisions of the constitution, art. 3, § 2, embraces the rights of one party as well as of the other. Cohens v. Virginia, 6 Wheat. 264, 379. A power conferred on a mayor of a city to exercise the powers of a justice of the peace, in civil and criminal cases, does not authorize him to take acknowledgments of deeds. The phrase, civil and criminal cases, means suits. Shultz v. More, Wright, 280. Case, as used in Iowa Code, § 2529, pro- viding for the time in which to bring ac- tions " for relief on the grounds of fraud in cases heretofore solely cognizable in a court of chancery," means a contested question in a court of justice. It does not refer to the action or to the form thereof, but to the questions and rights involved. Geb- hard w. Sattler, 40 Iowa, 152, 156. The word cases, in the Indiana constitu- tional provision excepting " capital eases " from the jurisdiction of a circuit court held by the two associate judges alone, should not be deemed synonymous with prosecu- tion, so as to exclude the proceedings prior to the indictment, but was designed to em- brace all the stages of criminal proceedings, from the empanelling of the grand jury to the execution of the final sentence. Cook V. State, 7 Blackf. 165. 2. Case is used as a brief name for action on the case, or, more fully, special action of trespass on the case, one of the common-law forms of action. This CASE 188 CASE action is of an origin less ancient than others derived from the common law. It appears to have first come into use in the reign of Edward III. It was in- vented under the authority of the stat- ute of Westminster 2, ch. 24, in order to supply a defect in the original scheme of personal actions, which comprised no forms adapted to the redress of many injuries. This statute gave power to the clerks of the chancery to frame new writs in consimili casu, upon the analogy of writs already known. Under this power they constructed many writs for different injuries, which were consid- ered as in consimili casu with, that is, to bear a certain analogy to, a trespass. The new writs invented for the cases supposed to bear such analogy, received, accordingly, the appellation of writs of trespass on the case (previa de transgres- sions super casum), as being founded on and setting forth the particular circum- stances of the case thus requiring a remedy ; and to distinguish them from the old writ of trespass, and the injuries themselves, which are the subjects of such writs, were not called trespasses, but had the general name of torts, wrongs, or grievances. The writs of trespass on the case, though invented thus, pro re nata, in various forms, ac- cording to the nature of the different wrongs which respectively called them forth, began, nevertheless, to be deemed as constituting, collectively, a new indi- vidual form of action; and this new genus took its place by the name of tres- pass on the case, among the more an- cient actions of debt, covenant, trespass, &c. Steph. Plead. 17. It includes, in its most comprehensive signification, as- sumpsit, as well as an action in form ex- delicto, but is usually understood in the sense of the latter. The action, besides being founded on the common law, is also, both in Eng- land and in this country, allowed by statutes. It lies generally to recover damages for torts not committed with force, ac- tual or implied; or, having been occa- sioned by force, where the matter affected was not tangible, or the injury was not immediate, but consequential; or where the interest in the property was only in reversion, — in all which cases trespass is not sustainable. Torts of this nature are to the absolute or rela- tive rights of persons, or to personal property in possession or reversion, or to real property, corporeal or incorpo- real, in possession or reversion. These injuries may be either by nonfeasance, or the omission of some act which the defendant ought to perform; or by mis- feasance, being the improper perform- ance of some act which might lawfully be done; or by malfeasance, the doing what the defendant ought not to do: and these respective torts are commonly the performance or omission of some act contrary to the general obligation of the law, or the particular rights or duties of the parties, or of some express or im- plied contract between them. 1 Chitty Plead. 148. In short, this form of ac- tion may be said to lie in every case where damages are claimed for an injury, either to person or property, not falling within the compass of the other forms. Case agreed on; case stated. In England, and in most, if not all, of the states of this country, some provision is made to enable parties to an action, who agree upon the facts, to submit a statement thereof in writing to the court, without a trial, in order to ob- tain a decision upon the points of law arising on such facts. This statement is in several jurisdictions called a case agreed on, or case stated. A counsel who opens a case before a jury is also said to state the case to the jury- Case on appeal. A document pre- pared by counsel of an appellant, par- ticularly in those states following re- formed codes of procedure, exhibiting the proceedings on the trial to be re- viewed, for the information of the appel- late court. Errors of law are review- able upon a bill of exceptions ; but such bill only exhibits the evidence or offers of evidence necessary to enable the ap- pellate court to say whether error of law has been committed in the particu- lar rulings made. There are two objec- tions to a verdict often important, which, therefore, cannot be raised upon a bill of exceptions : one is, that the ver- dict is against evidence; the other, that CASH 189 CASTELLARUM the damages found are excessive. The discussion of these requires a presenta- tion of the entire evidence; to make this is the office of a case. A bill of exceptions sets forth particular rulings, objected to as erroneous, with the evi- dence or oSer on which they were made. A case shows, in substance, the whole evidence, enabling the court above to review the finding of the jury, as well as the rulings of the judge. In New York, it is common to combine both documents in one : a case is made upon leave granted at the trial, with a privi- lege of turning it into a biU of excep- tions. It shows the evidence and rul- ings completely ; and is first used as a case, as a basis of a motion to set aside the verdict; and afterwards is treated as a bill of exceptions, when the rulings of law come to be argued upon an ap- peal. The case is ordinarily drafted by the counsel of appellant, and either con- sented to by the adverse counsel, or sub- mitted to the judge who tried the cause for settlement. Case reserved; case made. When, during the progress of a trial, points of law arise which cannot then be satisfac- torily decided, then, in order to have them determined upon argument before the court in banc, a statement in writing of the facts proved is drawn up and set- tled by counsel, under the supervision of the judge, and this is called a case re- served, or case made. Where the law of a case is doubtful, it is customary for counsel to agree that a general verdict shall be found most usually for plain- tiff, subject to the opinion of the court upon such a case to be made; the jury then find a general verdict, which is subject to the decision of the court upon the law questions involved. This is also called a case reserved, or case made. CASH. A sale for cash, by a commis- sion merchant, means for money, to be paid on delivery of the property. Bliss v. Ar- nold, 8 Vt. 255. In the terms of a commissioner's notice of sale, cash does not necessarily mean coin, but ready money, in contradistlnotipn to credit. Meng v. Houser, 13 Rich. Eq. 210. The condition that competitors for a con- tract should send in a certificate of deposit of 14,000 in cash, Is fulfilled by sending m a 2/V/ certificate of deposit of |4,000. People v. *-' vf Contracting Board, 27 N. Y. 378. ;; Gold-dust is not cash, within the mean- ing of a contract specifying that payment shall be made in cash. Gunter v. Sanchez, 1 Cal 45. That a note payable in bank-bills is not regarded as a cash note, in Massachusetts, and is not negotiable, see Jones v. Pales, 4 Mass. 245; but otherwise in New York, Judah V. Harris, 19 Johns. 144; Keith v. Jones, 9 Id. 120; see also Morris v. Ed- wards, 1 Ohio, 189. Cash payment means the opposite of credit. Foley v. Mason, 6 Md. 37 ; and see Steward ». Scudder, 24 N. J. L. 96, To receive a check as cash is to receive it as ready money ; and imports payment, satisfaction, of the demand for which it was given. Blair v. WUson, 28 Grait. ( Va.) 165. Cash-book. One of the account- books ordinarily kept by merchants, be- ing the one appropriated for entering all receipts or payments of money. Cash-price. A price paid or payable at the time of sale or delivery of prop- erty, in opposition to a barter or a sale on credit. CASHIER,. An officer of a moneyed institution, or of a private person or firm, who is intrusted with, and whose duty it is to take care of, the cash or money of such institution, person, or firm. The cashier of a bank is the regularly authorized organ thereof, and whatever is done by him in that capacity is the act of the bank. Bumham y. Webster, 19 Me. 232. CASSATION. The act of annulling. It corresponds, in French law, to re- versal in American practice. Cassetur billa, or breve. That the bill or writ be quashed. In the common-law practice, judgment for the defendant on a plea in abatement in an action commenced by bill was in form cassetur billa. Such a judgment was also sometimes entered by the consent of a plaintifi, who found that he could not successfully prosecute his suit; and such entry amounted to a discontinuance of the action. In actions commenced by original writ, the form substituted for cassetur billa was cassetur breve, that the writ be quashed. Castellarum operatic. Service or labor done, under the old English and Saxon laws, by inferior tenants, for the CASTIGATORT 190 CASUS assistance of their feudal lords in build- ing or repairing their castles. Holt- hoiise. CASTIGATORY. The name of an English contrivance, now obsolete, for punishment of scolding or vicious wo- men; otherwise called, according to Jacob, trebucket, tumbrel, or cucking or ducking stool. CASTING-. Casting an essoin was alleging an excuse for not appearing in court to answer an action. Holthouse. See Essoin. CASTING-VOTE. The vote of a presiding officer, at an assembly or meeting, given to decide the question when the votes of the assembly or meet- ing are equally divided between the affirmative and negative. Casting-vote, as used in the New York statute relative to religious corporations ( 1 Eev. Stat. 4th ed. 1179, § 1 ; 2 /d. 5th ed. 604), means a double vote of the chairman, who first votes with the rest, and then, in case of a tie, creates a majority by casting a second vote. People, ex rel. Bemington, u. Rector, &c. of Church of the Atonement, 48 Barb. 603. CASUAL. That which happens ac- cidentally; or is brought about by causes unknown or as to which nothing is suggested; without reason, in a legal point of view. Casualty: an accident; an event which could not be foreseen or avoided. Casual ejector. The nominal de- fendant in the common-law action of ejectment; so called because, by the fic- tion underlying that action, he was re- presented as having, by accident or without any legal cause necessary to be considered, entered on the premises and ejected the lawful occupant. This, with other fictions of the action of ejectment, has been abolished in Eng- land, and in almost, if not all, of the states of this country. Casual pauper. An expression com- mon in England for a person who ap- plies for relief under the poor-laws in a parish where he has not a lawful settle- ment, — where he is by accident, as it were. This class of persons are often briefly spoken of as casuals; and the ward in the workhouse, hospital, &c., appropriated to them is called the casual ward. Casualties of superiority, in the feu- dal language of the Scotch law, are pay- ments from an inferior to a superior, that is, from a tenant to his lord, which arise upon uncertain events, as opposed to the payment of rent at fixed and stated times. Ben. CASUS. A case, in the sense of oc- currence; occasion; event; combination of circumstances: also, in the sense of a judicial presentation of a cause. Its use in the first-mentioned sense is the only one of much importance in modem jurisprudence. It occurs in the follow- ing phrases, which recur frequently: Casus foederis. The case of the treaty. The case contemplated by or within the stipulations of a compact. The term is sometimes applied to an or- dinary contract, as well as to public treaties and conventions. Casus fortuitus. A fortuitous event; an inevitable accident; an event oc- curring without the intervention of hu- man agency, and producing a loss, in spite of all human effort and sagacity. Such are the effects of strokes of light- ning, or other causes above human con- trol. But an event which, though un- foreseen, was not inevitable, is not within the meaning of the term. See Accident; Act op God. Casus omissus. A case omitted. This term is frequently applied to an omission in a statute to provide for a particular case, which has either been overlooked by the legislature or left un- provided for as unimportant. Such cases must be disposed of according to the law as it existed prior to such stat- ute. Provisions cannot be supplied by the courts. The term is sometimes used of a con- tingency left unprovided for in a con- tract, as well as in a statute. Casus omissus et oblivion! datus dispositioni communis juris relin- quitur. A case omitted and given to oblivion is left to the disposal of the common law. A case unprovided for by a statute, and forgotten, must be dis- posed of according to the rules of the common law. Casu consimili. The name of an old English writ of entry granted where tenant by the curtesy, or tenant for life, aliens in fee, or in tail, or for an- CATALLA 191 CAUSA other's life ; then this writ might be brought by the reversioner against the party to whom the tenant had aliened to his prejudice, and in the tenant's life- time. The name is said to have been derived from the fact that the clerks of chancery framed it in the likeness of the writ called in casu proviso. Casu proviso. The name of an old writ of entry, given by the Stat, of Gloucester, ch. 7. It would lie where a tenant in dower aliened in fee, or for life, &c., and might be brought by the reversioner against the alienee. Both this writ and the preceding one are abolished by Stat. 3 & 4 Wm. IV. ch. 27, § 36. Jacob ; Mozley §• W. CATALLA. Chattels. This term includes all property, movable and im- movable, except fees and freeholds. It occurs most frequently in the phrase bona et catalla, corresponding to goods and chattels ; also, in the names of writs now obsolete: Catallis captis nomine districti- onis, a writ that lay for rent, and war- ranted the taking of doors, windows, &c. , by way of distress ; also, Catallis reddendis, a writ which lay where goods, being delivered to any man to keep till a certain day, were not, upon demand, delivered; like the writ of det- inue, or the actio depositi of the civil law. Catalla otiosa. Idle chattels.' Orig- inally, this term was used to distinguish idle cattle — such as were not used for working — from working cattle and sheep. Later, it was used in the sense of goods or chattels without life, as dis- tinguished from animals. CATCHINGS. Things caught, and in the possession, custody, power, and do- minion of the party, with a present capacity to use them for his own purposes. The term includes blubber, or pieces of whale flesh cut from the whale, and stowed on or under the deck of a ship. A policy of in- surance upon outfits, and catchings, substi- tuted for the outfits, in a whaling voyage, protects the blubber. Eogers v. Mechanics' Ins. Co., 1 Story C. Ct. 603 ; 4 Law Rep. 297. CATCHPOLE. An English name for a deputy sheriff or bailiff authorized to make arrests ; employed, Wharton suggests, probably because he catches by the poll, or head, the person arrested. It is now a term of contempt or deri- sion ; but originally does not seem to have had any such quality. CATHEDRAL. In English ecclesi- astical law, the church of the bishop and head of the diocese, in which is his seat of dignity, and in that respect the principal church of the diocese. CATTLE. In its primary sense, in- ^ r^ , eludes the domestic animals generally ; all -^ " ' the animals used by man for labor or food. ^ i^C Thus, a statute which punishes driving any stock of cattle to feed upon lands with- out the consent of the land-owner, includes sheep. United States v. Mattock, 2 Satcyer, 148. Cattle includes horses and asses, as well as domesticated horned animals. Ohio, &c. E. E. Co. V. Brubaker, 47 lU. 462. That cattle may be read as including sheep and swine, see Decatur Bank v. St. Louis Bank, 21 Wall. 294 ; United States v. Mattock, 2 Sawyer, 148 ; Eex o. Chappie, 1 Rms. ^ R. 77 ; Act of congress of July 13, 1866, § 9, 14 Stat, at L. 117. The generic term cattle, used in the estray laws, includes oxen, though " work- ing oxen " are mentioned specifically in the statute. State o. Moreland, 27 Tex. 726. Under the statute exempting " one pair of working cattle," a bull used for work is exempt, although the owner has no other cattle. Bowzey v. Newbegin, 48 Me. 410. It is not improper, in an indictment, to use the word steer instead of cattle or neat cattle. State v. Lange, 22 Tex. 591 ; s. p. State V. Abbott, 20 Vt. 537. Cattle has been held to include : Asses, within the meaning of the act of 9 Geo. I. ch. 22 (6), Eex v. Whitney, IMoody, 3. Geldings, Eex v. Clarke, 1 Lewin, 229. Horses, Rex v. Paty, 2 W. Bl. 721. Mares and colts, lb.; Moyle's Case, 2 East PI. Cr. 1076. Pigs, Eex V. Chappie, Russ. %■ R. 77. l3ut not buffaloes. State v. Crenshaw, 22 Mo. 458. CAUSA. A cause, in the sense of that which supplies a motive, or con- stitutes a reason ; hence it sometimes means the consideration for a contract. Also, a cause in the sense of a judicial proceeding, or the right or claim upon which a judicial proceeding may be founded. See Cause. The first-mentioned sense is the one of most importance at the present day, as the word with that meaning enters into several phrases of frequent recur- rence. Thus divorces are said, in books employing the phraseology of the civil law, to be grantable, causa affinitatis, on the ground of affinity; causa consan- guinitatis, for cause of consanguinity; CAUSA 192 CAUSA causa fngiditatis, for coldness; causa impotentioe, for impotence; causa metus, because the marriage was induced by fear ; causa prce contractus, upon the ground of a prior marriage. Causa causans. The immediate cause. A cause which directly pro- duces the effect is termed causa causans, as distinguished from causa causae cau- santis, which denotes a proximate but not an immediate cause. Causa mortis. On account of death: In view of death. Commonly occurring in the phrase donatio causa mortis, q. v. Causa proxima, non remota, spec- tatur. The near, not the remote, cause is regarded. The law considers only the direct, not the remote, causes of events. This maxim is of frequent application in cases of insurance, and of claims for damages for injuries sustained by the wrongful act or neglect of the defend- ant. It is most frequently cited with reference to questions arising out of marine insurance. In such cases, a policy-holder, in order to recover, must show that the loss for which he claims was a direct and not a remote conse- quence of some of the perils insured against; and if this is shown, his claim is not rendered less valid if that partic- ular peril was encountered in the en- deavor to escape another not covered by the policy. Thus, if a vessel insured under a policy which does not cover war risks, in endeavoring to escape capture by an enemy, runs ashore and becomes a wreck, the owners may recover the insurance if the policy covers the loss by stranding, that being the direct cause of loss, although the remote cause was the endeavor to escape capture, which was not covered. On the other hand, if the ship was driven by stress of weather into a hostile port, and there seized and condemned as a prize, the owners could not recover for their loss, the proximate cause being the condemnation, which was not insured against, although the remote cause was one of those covered by the policy. So where a vessel has been compelled to put into port to repair damage caused by perils of the sea cov- ered by a policy of insurance, and the master, in order to pay for the repairs, has sold part of his cargo, and applied the proceeds in paying for such repairs, the insurer of the cargo will not be lia- ble, for the direct cause of the sale was the necessity the master was under of providing funds for payment of the ex- penses of repairing, and not the perils which had rendered the repairs neces- sary. But, on the other hand, if a ves- sel is damaged by perils of the sea, and on putting into port for repairs it is found that the cargo has also been dam- aged, and the cargo is sold, as unfit for further transit, for the benefit of all con- cerned, the insurer of the cargo is liable for the loss, as one arising directly from the perils of the sea insured against. Trayn. Max.; Broom Max. In the case of lonides v. Universal Marine Ins. Co., 14 C. B. TS. s. 259, the application of the maxim to this class of cases is very f uUy explained, and many illustrations of its meaning given, among them the following, referring to an exception in a policy of insurance, extending to loss from all the consequences of hostilities. " Assume that the vessel is about to enter a port having two channels, in one of which torpedoes are sunk in order to protect the port from hostile aggression, and the master of the ves- sel, in ignorance of the fact, enters this channel, and his ship is blown up: in that case the proximate cause of the loss would clearly be the consequences of the hostilities, and so within the exception. But suppose the master, being aware of the danger presented in the one channel, and in order to avoid it attempts to make the port by the other, and by unskilful navigation runs aground and is lost, that would not be a loss within the exception, not being a loss proximately connected with the con- sequences of hostilities, but a loss by a peril of the sea, and covered by the policy." In actions to recover damages on ac- count of injury, the principle of this maxim is applicable, although not with so much strictness as in cases of insur- ance. Whenever the alleged cause of damage appears to be the remote rather than the proximate cause, no action can be sustained. Upon the same principle rests the rule excluding consequential damages, whenever the alleged cause of CAUSE 19a CAUSE the damage is too remote from the con- sequences for -which damages are sought. This application of the principle extends to actions for breach of contract, as well to actions founded upon tort; but the measure of damages is much more strictly confined in cases of contract. As stated in the leading case of Hadley V. Baxendale, 9 Exch. 341, which is re- garded as settling the law, the rule is : " Where two parties have made a con- tract which one of them has broken, the damages which the other party ought to receive in respect of such breach of con- tract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasona- bly be supposed to have been in the con- templation of both parties at the time they made the contract, as the probable result of the breach of it." In criminal prosecutions, the applica- tion of the maxim is somewhat modi- fied by the consideration that in crimes the intention is matter of substance, and the first motive, as showing the inten- tion, must therefore be principally re- garded. Hence the remote cause of the offence will be considered for the pur- pose of deciding upon the intention of the accused. In other respects, the maxim applies in criminal cases. Thus, where a person commits upon another an assault which results in the death of the latter, it would not be a valid de- fence that the person assaulted was at the time laboring under a fatal disease, which was only aggravated by the as- sault with the result of accelerating the death. The assault is the direct cause of the death at the time it occurred, and that, not the more remote cause of the existing disease, will be regarded. Again, an indictment for manslaughter was not sustained in a case where fire- works kept by the prisoner contrary to statute exploded through accident or the negligence of his servants, setting fire to an adjoining house, and thereby occasioning a person's death. His ille- gal act in keeping the fireworks was held to be too remotely connected with the death, to support the indictment. CAUSE. 1. That which supplies a VOL. I. 13 motive, decides action, or constitutes the reason for any thing done. Hence it is used particularly by writers follow- ing the civil law, also in Scotch law, for the consideration of a contract. 2. A judicial proceeding; an action or suit, including all its steps. Also, the right, claim, or demand which may be the foundation of a judicial proceed- ing ; but for this, cause of action is the fuller and better phrase. See also Case. The civilians use the term cause in rela- tion to obligations, in the same sense as the word consideration is used in the jurispru- dence of England and the United States. It means the motive, the inducement to the agreement, — id quod inducet ad cantrahm- dum. In contracts of mutual interest, the cause of the engagement is the thing given or done, or engaged to be given or done, or the risk incurred by one of the parties. Mouton V. Noble, 1 La. Ann. 192. Cause imports a judicial proceeding en- tire, and is nearly synonymous with lis in Latin, or suit in English. Although allied to the word case, it diEEers from it in the application of its meaning. A cause is pending, postponed, appealed, gained, lost, &c. ; whereas a case is made, rested, argued, decided, &c. Case is of a more limited sig- nification, importing a collection of facts, with the conclusion of law thereon. Both terms may be used with propriety in the same sentence ; e.g., on the trial of the cause, the plaintifi introduced certain evi- dence, and there rested his case. 18 Cmn. App. 10. The phrase causes, civil and criminal, in a statutory provision giving to the national courts jurisdiction " of all causes, civil and criminal," affecting persons who are denied any of the rights secured by the act, must he understood in the sense of causes of civil action and causes of criminal prosecution. United States v. Rhodes, 1 Abb. U. S. 28, 33; Am.L. T. U.S. Cis. 22. Cause list. An English name for a list of causes analogous to the calendar {q. u.) or docket, so called, in American courts, made out for each day during the sittings of the courts, and exhibited in a, conspicuous place in each court. The list is generally made out at the close of the previous day's sitting, and appears in the newspapers on the fol- lowing morning. Cause of action, is synonymous with ifSL right of action, right of recovery. Graham , .-.- V. Scripture, 26 How. Pr. 501. -^ ^ '^ Cause of action is not synonymous with chose in action ; the latter includes debts, &c., not due, and even stocks. Bank of Commerce v. Rutland & Washington R. B. Co., 10 How. Pr. 1. CAUSES CELEBRES 194 CAVEAT Cause of action, in a statute defining jurisdiction of a local court, was held to in- clude personal actions only, and not to embrace an action to set aside a deed of lands lying in another state. Bennett v. Erving, 4 BoU. 671. The provision of HI. Rev. Stat. 785, § 85, that " the cause shall be considered as abandoned" if transcript be not filed in two years, means the particular suit, and not the cause of action. Eoon v. Nichols, 85 Itt. 155. Cause of action is properly the ground on which an action can be maintained ; as when we say that such a person has no cause of action. But the phrase is often used to signify the matter of the complaint or claim on which a given action is in fact grounded, whether or not legally maintain- able. Mozley Sf W. CAUSES CELEBRES. Celebrated trials. The title of some collections of reports of decisions of marked interest and importance ; a prominent one being a French collection of causes iii the 17th and 18th centuries. The first series, in 22 volumes, is by Gayot de Pitival; the second, called Nouvelles Causes Celebres, in 15, is by Des Essarts. Wharton. Thus the term in French jurisprudence resembles State Trials in English. Secondarily a single trial or decision of remarkable character and interest is often called a cause celeire. The idea is somewhat different from that conveyed by " Leading Case." A leading case is one which is of eminent importance for settling the law; cause cdlebre, among English and American vfriters, is oftener applied to a trial remarkable for the parties and facts involved. CAVEAT. Let him take heed. This word is used to designate a formal cau- tion or notice to a court or officer, either judicial or ministerial, not to do a cer- tain act, given by a party interested in the matter. The caveat is employed to prevent the admission to probate of wills, the granting of letters of adminis- tration, the issue of letters-patent for inventions, and, in the United States, the issue of letters-patent for lands. Filing the caveat protects the rights of the person interposing it against any new rights or claims which, without it, might arise out of the progress of the proceeding to which it relates. Caveat, as used in the Pa. act of 1856, limiting to five years from the date of pro- bate a contest of the validity of the will as to specific realty, " by caveat and action at law duly pursued," does not mean, as usually, to stop the proof of the will, but a testing, &c. Stewart v. Austin, 9 PMa. 141. Caveat is a process formerly used in the spiritual court, and now used in the court of probate, to prevent or stay the proving of a will, or the granting of administration. A caveat may also be lodged in the court of chancery against enrolling a decree which it is intended to appeal to the lords justices in full court, inasmuch as after en- rolment the only appeal is to the house of lords. But since the judicature act, 1873, this distinction is probably of less impor- tance. - Braimt. Caveat emptor. Let the buyer take heed. The purchaser must examine for himself and exercise his own judgment. When sales of real property are in question the maxim applies, within lim- its, both to the title and quality of the land sold. As respects the title, it ap- plies equally whether the vendor is in or out of possession; he cannot hold the land without some title; and the pur- chaser is bound to see to it, and to read the title-deeds, at his peril. He does not use common prudence if he relies on any other security. As respects the quality or condition of premises sold or leased, the purchaser or lessee must see for himseK: no warranty will be im- plied on the part of the vendor or lessor that the land is suitable for any particu- lar purpose, as for pasturage, or that a house on it is fit for habitation ; except, perhaps, that in letting a house ready furnished there is an implied obligation that the house is in a fit state to be in- habited. There is an exception from the rule of cases of fraudulent repre- sentation on the part of the vendor, in- cluding cases of fraudulent concealment, but it does not extend to mere ignorance, on the part of the vendor, of defects in the property. And oases where the ven- dor is cognizant of any defect, and does not acquaint the purchaser with the facts of its existence, and where the de- fect is a latent one, of such a nature that the purchaser could not by the greatest attention discover it, are not within the meaning of the maxim. When sales of personal property are in question, the maxim also applies, with like exceptions of the cases of ex- press warranty or fraud, both to the title and the quality of the property. CAVEAT 195 CAVEAT No warranty by the seller of either title or quality will be implied, unless from circumstances beyond the mere fact of a sale. But very slight circumstances will be sufficient to sustain an implied war- ranty of title. The rule of the civil law, expressed by the maxim caveat venditor, by which a warranty of title was implied on every sale of a chattel, was not adopted by the common law, and the rule caveat emptor was formerly of extensive application as to questions of title, but has been gradually re- stricted. As respects quality, the gen- eral rule is that the maxim applies to an agreement for a specific article in its then state, no warranty of its fitness or merchantable quality being implied ; but if a person is employed to make a spe- cific chattel, a contract is implied on his part that it shall be fit for the pui'pose for which it is ordinarily used. And upon a sale of merchandise not by sam- ple and without warranty, and where no opportunity of inspection is given to the buyer, a condition that it shall fairly and reasonably answer the description in the contract is implied. The various circumstances under which the maxim does or does not apply in regard to the quality of goods sold are fully consid- ered and classified in the case of Jones V. Just, L. R. 3 Q. B. 197. Broom Max. 777. The full form of the maxim shortly stated as caveat emptor, is, caveat emp- tor; qui ignorare ,non debvit quod jus alienum emit; let the buyer beware, who ought not to be ignorant that hoviff buy- ing the right of a third person. The maxim shortly stated as caveat emptor — let the buyer beware — applies to pur- chasers of all descriptions of property ; and in the case of real estate and chattels real is applied in the following manner : A. sells to B. land with a defective title, A. not knowing of the defect ; B., though evicted, has no remedy against A. ; nor does it make any difEerence, though the defect were known to A., if it were a patent defect, and might, by reasonable diligence, have been also known to B. ; and this, though A- had, in the course of the negotiations for sale, made misrepresentations respecting the al- leged defect. K, however, the defect be a latent one, known to the vendor, but not disclosed to the purchaser, and which by proper diligence the purchaser could not possibly have discovered, in this case caveat emptor does not apply, and the purchaser is not bound to the contract, either in law or in equity. If the case be one of misdescrip- tion only, in the particulars of the property contracted to be sold, and does not go to the whole subject of the contract, this will be set right by a court of equity, and an eqmvaleut will be ordered to be given by way of compensation. The same rule ap- plies to the purchase of specific chattels personal ; where the purchaser has an op- portunity of judging of the quality of tlie goods purchased, he takes them, in the ab- sence of express warranty, with all their defects. Where, however, he confides in the judgment of the seller, the law implies a warranty that they will be suitable for the particular purpose designed. On the whole, it appears that the law requires the purchaser, in all cases, to use the utmost diligence in the investigation of the right and title to, and nature, estate, and quality of, the thing to be purchased ; and if he do not, then, in the absence of positive fraud on the part of the vendor, he (the pur- chaser) must take the thing purchased as he finds it, with all faults, Wharton Leg. Max. Caveat emptor is an ancient rule of the common law, and stands in contradistinc- tion to the rule of caveat venditor of the civil law. An implied warranty of title on a sale of chattels is common to both the com- mon and civil law. But in regard to the responsibility of the seller to answer for the quality or goodness of the articles sold, there exists between these two systems of jurisprudence an irreconcilable disagree-' ment. According to the civil law, a sound price impUes a wiirranty of the soundness of the article sold. By the common law, the vendor is not bound to answer to the vendee for the quality or goodness pf the articles sold, unless he expressly mrrants them to be sound and good, or unleiSS he knew them to be otherwise, and ilsed"some art to disguise them, or unless they turn out to be different from what he represented them to'Hhe buyer; in other words, there must* be either an express warranty or fraud to make the vendor answerable for the quality or goodness of the articles sold. But in many cases the English common-law courts have so far departed from the com- mon-law rule as to hold that in every sale without any express warranty there is an implied warranty that the goods are mer- chantable, and, if sold for a particular purpose, that they are reasonably fit and proper for such purpose. New York courts have in several cases applied the civil-law rule of caveat venditor to sales by sample. This is the only inroad they have made upon the common-law rule of caveat emptor; and the application of the doctrine is lim- ited to sales where the purchaser has no opportunity of inspecting the article piur- chased. Hargous v. Stone, 5 N. Y. 73. Caveat venditor. Let the seller take heed. A maxim of the civil law, CEDE 196 CENTRAL the exact opposite of the rule of the common law upon the same subject, expressed by the maxim caveat emptor. According to the civil law, the seller was held responsible both for the valid- ity of the title to the property sold and for its quality or goodness, in all cases, at least, where a sound price was paid. The contrary rule having been adopted as a general principle by the common law, the cases to which that rule is deemed not applicable are frequently said to be governed by the maxim caveat venditor. Such cases are executory sales, agree- ments for the sale of goods to be subse- quently manufactured or produced, and sales where the buyer has no opportu- nity to inspect the article purchased. The rule of the civil law is caveat ven- ditor, and, therefore, if the seller wishes to secure himself from future responsi- bility, in case the article sold should afterwards he found to he different in kind or quality from what the parties supposed it to be, he must take care or pro- vide against such a responsibility, by a par- ticular agreement with the purchaser. The rule of the common law, on the other hand, is caveat emptor, which implies that the pur- chaser must take care to examine and ascer- tain the kind or quality of the article he is ■purchasing, or provide against any loss he may sustain from his ignorance of the kind or quality of the article sold, or from his inability to examine it fully, by an express agreement of warranty that the article pur- chased is of the particular kind or quality which the parties supposed it to he. It will be seen, therefore, that the principal differ- ence between the rules of the civil law and the common law is as to the party upon whom the responsibility is thrown of secur- ing himself, either by a full examination of the article, or by an express stipulation against future liability or loss ; and it is not so material which way the law is estab- lished, as that the rule should be uniform, and perfectly understood, so that both buyer and seller may know with certainty what the law is, and each be enabled to protect his own rights by the form of the contract. Wright v. Hart, 18 Wend. 449. Caveat viator. Let the traveller be- ware. This phrase has been used as a con- cise expression of the duty of a traveller on the highway to use due care to detect and avoid defects in the way. Cornwall v. Metropolitan Commissioners of Sewers, 10 Exch. 771, 774. CEDE. To transfer; used particu- larly of a transfer of territory from one government to another. To cede is not a technical word. In a direction in a wiU, to cede specified lands, on the death of testator's widow, to another person, the word cede may be taken as the testator is most likely to have under- stood it. To cede is to yield up. The probable meaning of the direction is that the lands are to be yielded up. Den v. Pierson, 16 N. J. L. 181. CEDO. I grant. The word ordinarily used in Mexican conveyances to pass title to lands. Mulford v. Le Franc, 26 Cal. 88, 108. CEDULE. In French law, is the techni- cal name of an act under private signature. Campbell v. Nicholson, 3 La. Ann. 458. CENSUS. An official enumeration of the persons inhabiting a state or country, with other statistical informa- tion, showing the numbers and condition of the people. Such an enumeration is made for the United States in every tenth year, in obedience to a constitu- tional provision. CENTRAL CRIMINAL COURT. A court for trial of offences committed in London, Middlesex, and certain sub- urban parts of Essex, Kent, and Surrey, and said to be the most important of English criminal courts. This court was erected in 18-34, by Stat. 4 & 5 Wm. IV. ch. 36, which, reciting that it was expedient for the more effective and uniform administration of justice in criminal cases that offences commit- ted in the metropolis, and certain parts adjoining thereto, should be tried by justices and judges of oyer and ter- miner, and gaol delivery, in the city of London, proceeded to constitute this new tribunal. The judges or commis- sioners of the court are the lord mayor of London ; the lord chancellor, or lord keeper; the judges of the courts at West- minster; the judge of the ' admiralty ; the dean of the arches ; the aldermen of London ; the recorder and common ser- geant of London ; the judge of the city of London court; any person who has been lord chancellor or lord keeper, or a judge of any of the courts at West- minster; and such others as the crown shall from time to time appoint. To this court her majesty may issue commissions of oyer and terminer, and gaol delivery, for the trial of all cases of treasons, murders, felonies, and misde- meanors committed within the city of London and county of Middlesex, and in certain specified parts in the counties CENTUMVIRI 197 CERTAINTY of Essex, Kent, and Surrey, all of which constitute a district which is to be, for the purposes of that act, deemed and taken to be one country. Subsequent statutes have enabled the court to try for offences punishable in admiralty, and for offences committed outside the territory above described, when sent there for trial by order of the queen's bench. The court sits at least twelve times in the year. Practically, those who pre- side in it for the trial of ofEences are, one or more judges of the superior courts of law at Westminster, the recorder of London, the common sergeant of the city of London, and the judge of the city of London court. Mozley §• W.; Whar- ton. OENTUMVIBI. A hundred men. The name of a body of Roman judges, consisting properly of one hundred and five men, selected three from each of the thirty-five tribes. Ordinarily, they constituted four tribunals; but the judg- ment of the entire body was required for the decision of the most important ques- tions of law, which were hence called causes centumvirales. CEPI. I have taken. Was of fre- quent use in the old Latin forms of returns of a sheriff, upon process, as follows : Cepi corpus. I have taken the body. This was used as the technical name of the return made by a sheriff to a capias, that he had taken the body of the party ; and is derived from the two emphatic words of the return. The form was varied according to circum- stances, cepi corpus merely being the pi'oper return where the party had been released on bail ; cepi corpus et est in cus- todia, — I have taken the body and it is in custody, — where he was in actual custody ; cepi corpus et paratum habeo, — I have taken the body and have it ready, — originally implied that the party was in actual custody, but afterward became the usual return where he had been ar- rested and discharged on bail. CEPIT. He took. This was the emphatic word formerly used in the Latin f onn of writs of trespass for tak- ing personal property, and in declara- tions in trespass and replevin. Where living chattels had been taken, the form was cepit et dbduxit, he took and led away; where other goods, cepit et aspor- tavit, he took and carried away. The word cepit is still used as descriptive of the action in certain cases; as in re- plevin, when the action is for the tak- ing only, it is said to be "in the cepit." Cepit in alio loco — he took in another place — were the distinctive words of a plea in replevin, by which the defend- ant alleged that he took the property in another place than that mentioned in the declaration. It was the usual plea where the defendant intended to justify the taking and claim a return. CERTAINTY. Is sometimes used in jurisprudence in its familiar sense of assurance ; confident belief. But in its more frequent employment as a techni- cal term it means clearness, accuracy, lucidity in written statement ; a plain, clear, and distinct setting down of things so that they may be understood; and is the opposite of ambiguity and indistinctness. Thus, the statements made in a written instrument are said to be certain, not when they are known to be true, but when they are couched in such language that no doubt can arise of the meaning intended. The older law-books distinguish three kinds of certainties: 1. Certainty to a common intent. This describes a mode of statement in which words are used in their ordinary meaning, though by argu- ment or inference they may be made to bear a different one. 2. Certainty to a certain intent. This is when the mean- ing may be understood upon a fair and reasonable construction, without recur- rence to possible facts which do not ap- pear. 3. Certainty to a certain intent in particular. This is that technical ac- curacy of statement which precludes all question, inference, or presumption against the party pleading. The last degree of certainty has long been deemed unnecessary, except when an estoppel is to be created, or in some pleas, such as are not favored. The second is required in an indictment or accusation, also, in a dec- laration, except as the strict rule of pleading has been relaxed by statutes allowing amendments. The first is suf- ficient in a defence, and, of course, in aU CERTIFICATE 198 CERTIORARI ordinary instruments such as are con- strued according to the intent of the party. See Co. Litt. 303 a ; Com. Dig. tit. Pleader, ch. 17 ; Steph. PI. 380; Mosely v. White, 1 Port. 410; United States V. Forrest, 8 Crunch C. Ct. 56 ; Spencer v. Southwick, 9 Johns. 314; Fuller V. Hampton, 5 Conn. 416, 428. CERTIFICATE. A writing, prop- erly authenticated, made by a court, or a judge or officer thereof, to give notice to another court of any thing done in the former. A writing giving assurance that a fact has or has not taken place ; made, generally, for the use of a court, judge, or officer. The return of a constable of the service of a summons is a certificate, in the tech- nical as well as the liberal sense of the term. Miller v. Larmon, 38 How. Pr. 417. A clause in a will to the effect that " my certificates that are in the hands of my brother I desire may be given to my hus- band, to dispose of as he may think proper," held, under the circumstances, not to in- clude warrants for bounty lauds, the brother of the testatrix having had at that time some other instruments in his possession more properly called "certificates." Ed- mondson v. Bloomshire, 11 Wall. 882. Certificate for costs. A memoran- dum signed by the judge before whom a cause has been tried, declaring some fact required by law to^entitle the party to whom it is given, to costs. Certificate, or certification, of as- size of novel disseisin. An obsolete English writ, which lay to obtain a sec- ond trial of an assise where there was surprise or mistrial on the first trial. Certificate of check. By custom of bankers, recently established, the cashier or teller may certify a check, which is usually done by writing or stamping " good " upon the face of it. That this binds the bank to pay any buyer for value on faith of it, see Good. Certificate of deposit. A writing, customarily issued by banks or bankers, giving assurance that a certain person named has deposited money with the bank, which is payable to a person named as payee, or to the order of the depositor. A certificate of deposit is a negotiable security, and, as far as negotiability is con- cerned, is placed on the Same footing as promissory notes. Welton v. Adams, 4 CcU. 37. Certificate of registry. A custom- house document, certifying that a vessel has been registered in accordance with the requirements of the registiy law. The object of the registry is to give the vessel a national character. CERTIFIED CHECK. A check with an indorsement across its face that it is good. When made by one properly authorized, it is an admission that the drawee has funds of the drawer, where- with to pay the check. It imports, by the decisions of several of the leading commercial states, an undertaking on the part of the drawee to pay it ; and is equivalent to an acceptance. CERTIORARI. Originally, and in English practice, a certiorari is an orig- inal writ, issuing out of the court of chancery or the king's bench, and di- rected in the king's name to the judges or officers of inferior courts, command- ing them to certify or to return the rec- ords or proceedings in a cause depending before them, for the purpose of a judi- cial review of their action. Jacob; 1 Bac. Abr. ; Com. Dig. It derives its name from the emphatic word in the old Latin form of the writ, which ran as follows: quia certis de causis certiorari volumus, because we wish to be certi- fied concerning certain causes ; and the operation of it is to require the court below to certify the record of its pro- ceedings for transmission to the superior court. Formerly, the writ would lie, veiy generally, in both civil and crim- inal cases ; but its use is understood to have been, of late, considerably restrict- ed by statute. In the United States, the use of the certiorari has been extended or regulat- ed, in the various states, by statute; and the jurisdiction to review by this writ varies accordingly. It has, how- ever, been extensively used in aid of a writ of error, where either party alleges a diminution or deficiency of the record, and desires a certiorari to bring up a complete return; also, to review the pro- ceedings and judgments of, and correct errors committed by, inferior courts and judges, in their exercise of an authority conferred by statute, and not pursuing the course of the common law; also, to review the determinations of special tri- CEUTIORARI 199 CERTIOKARI bunals, commissioners, magistrates, and officers exercising judicial powers affect- ing the property or rights of the citizen, when they act in a summary way, or in a new course, different from that of the common law; also, in aid of the writ of habeas corpus, in a class of cases where the return to the writ will disclose an imprisonment resulting from legal pro- ceedings, and it is necessary for the pe- titioner to bring up the proceedings for review, in order to present the merits of his case. There is a difference between a certiorari in the king's bench and chancery. In the king's bench, the very record itself is re- moved, and that which remains in the court below is but a scroll. But usually, in chancery, if the certiorari be returnable there, they remove but the tenor of the rec- ord. 2 Hale PI. (Jr. 215. Bill of certiorari, is an original bill, filed for the purpose of removing a suit pending in some inferior court of equity into the court of chancery, on account of some alleged incompetency of the in- ferior court, or some hardship in its pro- ceedings. Such bill states the proceed- ings, so far as they have gone; the cause of the incompetency of the inferior court,, by suggesting that the cause is out of its jurisdiction; or that the witnesses live beyond it; or that the defendant lives beyond it, and is not able, from age, infirmity, or distance, to follow the suit there ; or that for some other cause substantial justice is not likely to be done to him; and then prays the writ to certify and remove the rec- ord and cause into the superior court. Upon filing the bill, and some auxiliary proceedings prescribed by the practice, a writ of certiorari is obtained ; being usually addressed to the judge of the in- ferior court, requiring him to certify, or send to the court, the tenor of the bill or plaint there, with the process and pro- ceedings thereupon. Upon the writ of certiorari being served and returned, and filed, and on a further order, on motion or petition, necessary in some cases, to retain the bill removed, the cause is deemed re- moved from the inferior court; and the bill exhibited in such court is consid- ered as an original bill in the court of chancery, and is proceeded upon as such. Certum est quod certum reddl potest. That is certain which can be made certain; that is sufficiently. cer- tain which can be reduced to certainty. This maxim is to be understood as pe- culiarly applicable to the construction of written instruments; which are never to be held void for any uncertainty which may be reduced to a certainty. Thus, in a lease for years, there must be a certainty as to the commencement and duration of the term ; but that need not be ascertained at the time, if a day Will arrive which will make it certain. So the subject-matter of any agreement, although not described with sufficient certainty for identification, may be made certain by words which may by reference be reduced to a certainty. In a variety of cases of contracts for the sale of goods, the quantity is indefinite at the time the contract is made, and can only be considered certain by the application of this maxim. Again, where by law a particular thing is re- quired to be done, but no period is lim- ited within which it must be done, the act must be done within a reasonable time; and what is a reasonable time may be ascertained by evidence, and, when so ascertained, is declared by Lord EUenborough to be as fixed and certain as if specified by act of parliament. Cessante ratioue legis, cessat ipsa lex. The reason of the law ceasing, the law itself ceases. When the reason for any particular law ceases to exist, the law itself is no longer operative. This maxim is founded upon the prin- ciple that reason is the soul of the law. When the reason for the existence of any rule of law ceases to have force, the rule itself should cease to have effect. The maxim is not, however, to be read literally, and in its widest sense, but as a guide in the application of rules of law to cases in which the reason for the particular rule does not exist. Thus, in the law of principal and agent, it is an established rule, that where a con- tract not under seal is made with an agent in his own name, for an undis- closed principal, and on which, there- fore, either the agent or principal may sue, the defendant, as against the latter, is entitled to be placed in the same situ- CESSIO 200 CHALLENGE ation at the time of the disclosure of the real principal, as if the agent deal- ing in his own name had been in reality the principal; and this rule is to pre- vent the hardship under -which a pur- chaser would labor, if, after having been induced by peculiar considerations — such, for instance, as the conscious- ness of possessing a set-off — to deal with one man, he could be turned over and made liable to another, to which those considerations would not apply,- aud with whom he would not willingly have contracted. When, however, the party contracting either knew, or had the means of knowing, or must, from the circumstances of the case, be pre- sumed to have known, that he was deal- ing not with a principal, but with an agent, the reason of the rule ceases, and there the right of set-oS cannot be main- tained. Broom Max. IGX. So the priv- ilege from arrest of a member of parlia- ment or a member of congress ceases at a certain time after the termination of the legislative session, because the pub- lic has then no longer that immediate interest i-n the personal freedom of the individuals composing the representa- tive body which is the reason of the rule. CESSIO; CESSION. 1. A transfer, or assignment; particularly a transfer of territory from one government to an- other. 2. In ecclesiastical law, when an ecclesiastical person is created bishop, or a parson of a parsonage takes another benefice, without dispensation, or if otherwise not qualified, &c., their first benefices are said to become void by ces- sion. Cessio bonorum. Surrender of goods. This phrase designated, in the civil law, an assignment of his property by a debtor for the benefit of his cred- itors. It is sometimes used in a similar sense in modem law to describe the surrender of an insolvent's estate and effects to his creditors. Jacob defines it as a process in the law of Scotland, similar in effect to bankruptcy. Cession des biens, in French law, is the surrender which a debtor makes of all his property to his creditors, either voluntarily or by compulsory pro- ceedings analogous to bankruptcy. CESTUI; CESTUY. He. Used only in law French phrases, the three foUow-. ing being the most common : Cestui que trust. . He in trust for whom another is seised of lands or tene- ments, or is possessed of personal prop- erty; he who has a right to a benefi- cial interest in an estate the legal title to which is vested in a trustee. A cestui que trust is the real, substantial, and beneficial owner of lands held in trust, as distinguished from the trustee. He is the owner of the equitable estate, as the trustee is of the legal estate. The term beneficiary (g. w.) has been sug- gested, and is often used, as an English equivalent for cestui que trust, the latter being a barbarous Norman law French phrase, and ill-adapted to the English idiom. Cestui que use. He to whose use another is enfeoffed of lands or tene- ments ; he who has a right to the prof- its of lands the legal title to which is vested in a feoffee to uses. A cestui que use was the substantial and beneficial owner, as distinguished from the feoffee to uses, who had the legal title and pos- session, with the duty of defending the- same, and the right to direct the mak- ing of estates thereof. By the statute of uses (27 Hen. VIII. ch. 10), the in- tervening estate of the feoffee to uses was extinguished, and thereafter the cestui que use became the legal owner, to all intents and purposes, the use being executed in him. Cestui que vie. He for whose life lands or tenements are granted; he whose life is the measure of the dura- tion of an estate. Thus, if A grant lands to B during the life of C, C is the ' cestui que vie, and B is termed a tenant pur autre vie. CHALLENGE. 1. An exception to jurors who are returned to pass upon a cause on its trial. A challenge in this sense is of two kinds: to the array, and to the polls. A challenge to the array is an objec- tion to all the jurors returned, collec- tively; not for any defect in them, but for some partiality or default in the ofiS- cer who selected, summoned, or arrayed the panel. It is either a principal chal- lenge, or a challenge to the favor. CHALLENGE 201 CHALLENGE The following are common grounds of principal challenge to the array; viz., that a juror summoned was nominated by either party; that the officer making the array is of kindred or affinity to either party, within the ninth degree; that such officer is liable to have his goods levied on by either party, or is his servant, counsellor, or attorney, or acts as his advocate; that he is in some way interested (against the party challeng- ing) in the question to be tried, either in the same cause, or in another cause, or matter, depending on the same point of controversy; that he has been god- father to a party's child, or the party to his ; or that either party has brought an action against the officer ; or that there is an action depending between the lat- ter and the party, which implies malice, such as slander, battery, and the like. A challenge to the array for favor is for any causes which are not deemed in themselves conclusive evidence of par- tiality, but which imply at least a prob- ability of bias or partiality in the officer ; as if there is a relation by marriage be- tween the cousin or son of the officer, and the party; that the party is subject to have his property levied on by the officer ; or that the latter hath an action of debt, or the like, against the party ; that the officer and party are fellow-ser- vants; or the party servant to the offi- cer; and so of any cause from which it may be inferred that the officer is not entirely indifferent between the parties. By statute, in some of the states of this country, restrictions have been placed upon this species of challenge, so that it has almost, if not entirely, gone out of use in civil actions. A challenge to the polls is an objec- tion to particular jurors, and may be made for any matter tending to disqual- ify them from serving; and this is either a principal challenge, or a challenge to the favor of the juror. The same causes, whether principal or to the fa^ vor, which will set aside the array are equally valid against the individual juror, so far as they apply. The following are some of the causes of principal challenge to the polls ; viz. , that the juror does not possess the nec- essary qualifications prescribed by stat- ute, as that he has not a sufficient free- hold or other property, &c. ; that he is an alien ; that he is within the age of twenty-one years, or above a certain age; or that he is an idiot or lunatic. The above is called a challenge propter defectum. There is another kind of principal challenge to the polls, called challenge propter affectum, by reason of some supposed bias or partiality. Thus it is principal cause of challenge that the juror has before given an opinion on the subject in controversy ; that he has even formed an opinion on the guilt or innocence of one on trial for a felony^ that, in a case involving capital punish- ment, he has conscientious scruples against the latter; that he is of kin by blood or marriage to either party within the ninth degree; that he is godfather to the party's child, or the party god- father to the juror's child; that the juror has land which depends upon the same title as the land in question; and so in all other cases where the juror has an interest in the action, direct or col- lateral; that he has before given a ver- dict in the same cause, or upon the same title or matter, though between other parties; that he was chosen arbitrator in the same cause, by one of the parties, and had entei-ed upon an examination of it; that he is counsellor, tenant, or servant of either party ; that he is of the same society or corporation with either party ; although it was held in Purple v. Horton, 13 Wend. 9, to be no ground of challenge to a juror that he was a freemason, where one of the parties to the suit was a freemason, and the other not. So, also, it is principal cause of challenge to a juror, that, since he has. been returned, he has eaten or drank at the expense of one of the par- ties ; that he has been labored with by one of the parties, and money or other thing given him for his verdict; or that an action implying malice or dis- pleasure is pending between the juror and one of the parties. Another kind of principal challenge to the polls is called propter delictum ; which is an ob- jection that the juror has been convicted of a crime which affects his credit and renders him infamous, as a conviction of treason, felony, perjury, forgery, or CHALLENGE 202 CHAMBERS other offence punishable with death or imprisonment in a state prison, or other infamous corporal punishment; but in this case his competency is generally restored by a free pardon. Challenge propter honoris respectum has been denominated another Mnd of this challenge ; as, if a lord of parliament is called as a juror, he may challenge him- self, or have his writ of privilege; but it does not appear that either party can challenge him. The challenge to the polls for favor is of the same natui-e with the principal challenge propter affectum, but of an in- ferior degree. The general rule is, that the juror must be indifferent; and, if it appears that he is not, this may be made the subject of challenge, either princi- pal or to the favor, according to the de- gree of probability of his being biased. The causes of the latter are infinite ; and it may be generally stated that when, from circumstances, it appears probable that a jury may be biased in favor of or against either party, and yet such cir- cumstances do not amount to matter for a principal challenge, it may then be made a challenge to the favor. The effect of these two species of challenge is the same. A challenge was given by the common law to persons on trial for felonies, which is called a peremptory challenge, because made by the party without as- signing any reason, and which the court is bound to allow. The number of these was limited to thirty-five, but has been reduced by statute in most of the states. In some it is allowed only in criminal cases, in others only in such cases when the offence is capital, while in a few it has been extended in a mod- ified degree to civil cases. 2. An exception taken against things ; as a writ, count, or declaration. It is seldom if ever used in this sense now, but is confined to exceptions to jurors returned for the trial of a cause. 3. An exception or objection to a par- ticular judge hearing or presiding at the trial of a cause, for bias, prejudice, in- terest, &o., used in some of the states. 4. An invitation or request, either verbally or in writing, given or made by one person to another, to fight; used chiefly of an invitation to fight a duel. In most of the United States, as well as in England, sending a challenge is a punishable offence ; and, under this rule, any words spoken or written, or any signs uttered or made to any person, expressing or implying, or intended to express or imply, a desire, request, invi- tation, or demand to fight "a duel, or to meet for that purpose, are deemed a challenge. Report of a Penal Code, N. Y. § 298; State v. Perkins, 6 Blaclcf. 20; Commonwealth v. Tibbs, 1 Dana, 524. CHAMBER. Has a secondary mean- ing in jurisprudence, apparently derived from its original one of apartment or room; that of a public body, or court. Thus we speak of the star chamber, or exchequer chamber; of the chamber of deputies, or of peers; of a chamber of commerce. As such body can only act in sessions, that is, in its apartment, the name of the apartment is put for the association. Chambers. The oflBce or private rooms of a judge, in which he transacts business, makes orders, approves securi- ties, &c., which do not require to be done in open court. Besides his powers when holding his court, there are many acts of subordinate importance which a judge may perform as an individual officer, and anywhere where he may be. These acts, usually transacted in a side room or office allotted to the judge for his use, are said to be done in chambers. So, in London, the offices of barris- ters are commonly called chambers. The phrase at chambers is a technical one. The jurisdiction of a judge at cham- bers is incidental to, and grows out of, the jurisdiction of the court itself. It is the power to hear and determine, out of court, such questions arising between the parties to a controversy as might well be deter- mined by the court itself, but which the legislature has seen fit to instruct to the judgment of a single judge, out of court, without requiring them to be brought be- fore the court in actual session. It follows that the jurisdiction of a judge at chambers cannot go beyond the jurisdiction of the court to which he belongs, or extend to matters with which his court has nothing to do. And the constitution, in granting such jurisdiction at chambers to the judges of the several courts of the state, as may be directed by law, is to be understood as Um- CHAMBERLAIN 203 CHAMPERTY king the jurisdiction of each to such sub- ject-matters as are within the jurisdiction of his proper court, and to which it is, ex vi termini, limited. Thus, under a constitutional provision that the judges of the various courts may have such jurisdiction at chambers as the legislature shall prescribe, the legislature cannot go so far as to confer authority to the judge of one court, sitting at chambers, to act in a cause pending in another court. Pittsburg, &c. Railway Co. v. Hurd, 17 Ohio tit. 144. CHAMBERLAIN. Originally a per- son who has the management and direc- tion of a chamber. Hence the word has come, in England, to be the title of several offices of high dignity, such as the lord chamberlain, to whom belongs the government of the palace at West- minster, and who attends the queen in opening parliament; the lord chamber- lain of the household, who has the over- sight of officers pertaining to the royal residence ; and the chamberlain of Lon- don, who keeps the city moneys, &c. Chamberlain is also used in some American cities as the title of an officer corresponding to treasurer. CHAMPERTY. The ofienoe of prosecuting or defending (or, by many authorities, of agreeing to prosecute or defend), whether by personal services or furnishing funds, a suit in which one has no legitimate interest, upon a cor- rupt bargain with the real party that the two shall divide the land (campum partire) or other subject-matter realized, in the event of success. Champertor: a purchaser or promoter of another per- son's suit; one chargeable with cham- perty. Champerty is a species of mainten- ance. Such bargaining has been from early times forbidden and punishable by both the civil, common, and statute law, by fine and imprisonment and for- feiture of goods, and the contract itself is void. It was so strongly disapproved by the common law, that the main rea- son (Blackstoue gives) why a chose in action was not assignable was because no man should purchase any pretence to sue in another's right. But modern legislation, in many of the United States, has much relaxed the stringency of the old law upon this subject. Every champerty implies mainten- ance, but every maintenance is not champerty. 2 Inst. 208. The distinc- tion between them is, that, where there is no agreement to divide the thing in suit, the party intermeddling is guilty of maintenance only ; but where he stip- ulates to receive part of the thing in suit, he is guilty of champerty. See Main- tenance. Several of the definitions given seem to make champerty consist in the agree- ment to prosecute or defend for a share in the result ; and not in acts of prose- cuting or defending done in pm-suance of such an agreement. 4 Bl. Com. 135 ; Martin u. Amos, Hired. L. 198; Weakly V. Hall, 13 Ohio, 167. The mere agree- ment, not yet carried into effect by any acts of maintenance, is doubtless ren- dered void by the law against cham- perty, and may be punishable by stat- ute ; but the authorities do not all treat it as embraced by the word. In the stricter use of the term, in American decisions, it seems to mean the prosecu- tion or defence of the suit, for a share agreed upon; not the mere agreement for a share. Transactions nearly akin to champ- erty, and often classed under that term, but better designated as buying demands for suit, and buying pretended titles, consist in the purchase outright of an evidence of debt or right in action, which the purchaser knows cannot be collected except by suit, or of lands of which possession cannot be obtained from the vendor, but only by action against a third person holding them under claim of title. Bargains of these classes, as well as bargains between at- torneys or counsel and their clients for contingent compensation, or a share in the success of the suit, have been so extensively regulated by the statute, that no sound judgment can be formed of the application of the law of cham- perty to any particular case, without an examination of the statute of the state; and many decisions, using the expres- sion that a contract is or is not cham- pertous, mean no more than that it is or is not invalid by the local law. Champerty is the unlawful maintenance of a suit in consideration of some bargain , to have « part of the thing in dispute, or CHAMPERTY 204 CHANCELLOR some profit out of it. The term covers all transactions and contracts, whether by counsel or otheria, to have the whole or part of the thing or damages recovered. Hol- loway V. Lowe, 7 Port. 488 ; Poe v. Davis, 29 Ala. 676; Thurston v. Percival, 1 Pick. 416; Key w. Vattier, 1 Ohio, 132; Rust v. Larue, 4 Litt. 417 ; Brown v. Beauchamp, 5 T. B. Man. 416. Champerty is the carrying on a suit in the name of another, but at one's own ex- pense, with the view of receiving as com- pensation a certain share of the avails of the suit. Ogden v. Des Arts, 4 Duer, 275, 283 ; Hovey v. Hobson, 51 Me. 62. Champerty is defined in the old books to be the unlawful maintenance of a suit, in consideration of some bargain to have a part of the thing in dispute, or some profit out of it. Stanley v. Jones, 7 Bing. 369. A promise, after a suit is determined, to pay an attorney a sum of money out of the moneys collected in that suit, is not cham- pertous. Walker v. Cuthbert, 10 Ala. 213. It is not essential to the ofEence of cham- perty that there be a suit commenced at the time the agreement is made. Rust v. Larue, 4 Litt. 417. An agreement to pay an attorney, for his services in conducting a slander suit, and, in the event of success, a sum " equal to one-tenth" of the damages recovered, was held not champertous, on the ground that it did not import an undertaking to give any part of the damages recovered, but an obligation to pay a contingent fee, dependent in amount on the sum recovered. Evans v. Bell, 6 Dana, 479. An agreement to pay counsel a fee equal to one-fourth of the value of the land that might be recovered, less the costs, was held not champertous, on the ground that the agreement was not to give a part of the thing in contest ; the reference to one-fourth the value of the land, was only for the pur- pose of measuring or ascertaining the fee. Ramsey v. Trent, 10 B. Mm. 336. A, holding a judgment against B, agreed with D, if he, D, would search out property of B, on which execution could be levied, he should receive as a compensation for his services one-third of the amount by this means collected. Held, that there was in this contract nothing in the nature of champerty, neither would there have been, had D agreed to pay his part of the ex- penses. Hickey v. Baird, 9 Mich. 32. It is not champerty for a man to advance money to carry on a suit for lands for a sh^re in them, if it may be that his wife will inherit the lands ; the potential interest of the wife is a sufficient reason that the husband should join in measures to recover the lands. Thallhiraer v. BrinckerhofE, 3 Cow. 623 ; Gilleland v. Failing, 5 Den. 308. A sale of land by one who purchased the same on an execution sale, but never ob- tained possession, is not within the laws against champerty. Snowden v. McKinney, 7 B. Mon. 526; Little v. Bishop, 9 Id. 240. Where there is an enforceable judgment for the 'recovery of lands, these lands, though held adversely, may be sold with- out violating the laws against champerty. Batterton v. Chiles, 12 B. Mon. 348. The assignment of an entry, in Kentucky, does not come within the statute against champerty and maintenance. Oldham v. Rowan, 4 Bibb, 545 ; see Denn v. Pissant, 1 N. J. L. 220. A judicial sale of lands, made by order of a court of competent jurisdiction, is not to be deemed void for champerty or main- tenance. The principles of the common law and the statutes, in relation to cham- perty, do not apply to judicial sales, or to sales made under a judgment, order, or de- cree of a court having competent jurisdic- tion to order the sale. Hoyt v. Thompson, 5 N. Y. 320. A purchase made without knowledge of the pendency of the suit is not an act of champerty. Clowes i/. Hawley, 12 Johns. 484. Where a person holding lands adversely assents to the purchase thereof by a third person, such purchase is not champertous. Mclntire v. Patton, 9 Humph. 447. The bonajide purchaser of a mere right of action is not guilty of maintenance or champerty. Danforth v. Streeter, 28 Vt. 490; s. p. Verdier v. Simmons, 2 McCord, Ch. 385. A guaranty by an attorney of a claim left with him for collection is not champer- tous. Gregory v. Gleed, 33 Vt. 405. CHANCE-MEDLEY. An old term for a casual encounter or unpremeditated affray. CHANCELLOR,. There are many officers in England bearing this title, with different affixes, but those which especially claim notice are as follows : 1. The lord chancellor, who is the presiding judge in the court of chan- cery; he is created by the mere delivery of the king's great seal into his custody, whereby he becomes, without writ or patent, an officer of the greatest weight and power, and superior in point of precedency to every temporal lord. He is a privy councillor by his office, and prolocutor of the house of lords by prescription. To him belongs the ap- pointment of all justices of the peace throughout the kingdom. Formerly, as he was usually an ecclesiastic, and pre- sided over the royal chapel, he became keeper of the king's conscience, visitor in right of the king of all hospitals and colleges of the king's foundation, and patron of all the king's livings under a certain value. He is the general guar- CHANCELLOR 205 CHANCERY dian of all infants, idiots, and lunatics ; and has the general superintendence of all charitable uses in the kingdom. All this is over and above the vast and ex- tensive jurisdiction which he exercises in his judicial capacity as the presiding judge in the court of chancery. 2. The chancellor of the duchy of Lancaster is the chief judge of the duchy court, who, in difficult points of law, used to be assisted by two judges of the common law, to decide the matter in question. This court used to be held in Westminster Hall, and was, formerly, much used in relation to suits between tenants of duchy lands, and against ac- countants and others, for the rents and profits thereof. 3 Bl. Com. 78; 3 Steph. Com. 347, note. It is now held in Man- chester and Liverpool, the chief cities of the duchy, and is presided over by a vice-chancellor, who decides all judicial questions. 3. The chancellor of the exchequer is an officer who used to sit sometimes in court and sometimes in the exchequer chamber, and, together with the other judges of the court, saw that things were conducted to the king's benefit. His principal duties, however, are not of a judicial character, but concern the management of the royal revenue, 2 Steph. Com. 458; and, under the judica- ture act of 1873, he is deprived alto- gether of his strictly judicial functions. 4. The chancellor of a diocese is an officer appointed to assist a bishop in matters of ecclesiastical law, and to hold his consistory courts for him. 2 Steph. Com. 672. 5. As a judicial title the term chan- cellor has not been employed in the federal judiciary, nor in that of many of the states. It was used in New York prior to the constitution of 1846; and is, now, (1878) in Alabama, Delaware, Kentucky, Mississippi and New Jersey. How far the powers and jurisdiction of a chancellor are commensurate with those known in England is differently regu- lated by the statutes. Chancellor's courts in the univer- sities, are courts of the universities of Cambridge and Oxford, in England, of local jurisdiction. They had sole ju- risdiction over all civil actions and suits, excep't where a right of freehold is concerned, and of all ■ injuries and trespasses against the peace, mayhem and felony excepted. Brown v. Renouard , 12 East, 13 ; Thornton v. Ford, 13 Id. 635, when a scholar or privileged person was one of the parties. These, by the university charter, they were at liberty to try and determine, either according to the common law, or according to local customs: 3 Bl. Com. 83, note; but modem statutes require them to pro- ceed according to the general law. CHANCERY. In England, the old court of chancery was the highest court of judicature next to the parliament, and is of very ancient institution. The ancient jurisdiction was of two kinds: ordinary, and extraordinaiy. The ordinary juris- diction was that wherein the lord chancel- lor, in his proceedings and judgments, was bound to observe the order and method of the common law; and the ex- traordinary jurisdiction was that which the court exercised in cases of equity. The ordinary court held plea of re- cognizances acknowledged in the chan- cery, writs of scire facias for repeal of letters-patent, &c., and also of all per- sonal actions by or against any officer of the court; and, by acts of parliament, of several other offences and causes. All original writs, commissions of bank- ruptcy, of charitable uses, and other commissions, as idiocy, lunacy, &c., used to issue out of this court, for which purposes the chancery was said to be always open; and sometimes a super- sedeas or writ of privilege was granted here to discharge a person out of prison. A habeas corpus, writ of pro- hibition, &c., might be had from this court in vacation, and a subpcena might issue to force witnesses to appear in other courts, where the latter had no power to call them. 4 Inst. 79 ; 1 Danv. Ahr. 776. The extraordinary court, or court of equity, proceeded by the rules of equity and conscience, and moderated the rigor of the common law, considering the intention rather than the words of the law, equity being the correction of that wherein the law, by reason of its universalities, is deficient. On this ground, therefore, to maintain a suit in CHANCERY 206 CHANGE chancery, it is ordinarily alleged that the plaintiff- is incapable of obtaining relief at common law ; and this must be without any fault of his own, as by having lost his bond, &o., chancery never acting against, but in assistance of, the common law, supplying its deficien- cies, not contradicting its rules. But what was termed the extraordinary juris- diction of the court became its usual jurisdiction, and the so-called ordinary jurisdiction was occasionally brought into exercise; the chief province of the court being to administer that large portion of the law which is distin- guished from the common law, and ■which is termed equity. Under the judicature act of 1873 (36 & 37 Vict. ch. 66), the court of chancery is now known as the chancery division of the high court of justice, and retains all its extraordinary jurisdiction as above defined, but no part of its ordi- nary jurisdiction, which latter is trans- ferred, part of it (e.g., idiocy, lunacy, patents, &c.) to the- court of appeal, and the other part of it to the other divisions of the high court of justice, which rep- resent respectively the courts at present known as the courts of common law. See Court. In the United States, the terms chan- cery and court of chancery have been adopted to some extent, though the cor- responding terms equity and court of equity are more frequently used. In some of the states, distinct and separate courts of chancery are established, pre- sided over by a chancellor, and to these the appellation of courts of chancery is usually given. The English court of chancery is the model of these courts, and equity is administered in them in nearly the same manner in which it is administered in England. Other states have no separate courts of chancery; but the common-law judges are authorized to administer the rules of equity in cases properly brought before them, according to their several statutes in that respect. In the remainder of the states, the forms of actions, writs, and bills in equity have been abolished, and codes of prac- tice have been established, which ob- literate all the distinctions between actions at law and bills in equity. In these latter states, the courts apply the rules of equity or of the common law, as the justice of the case seems to re- quire. The constitution of the United States confers, in one clause, on the fed- eral judiciary cognizance of cases iii equity as well as in law; and the uni- form interpretation of that clause has been, that by cases in equity are meant cases which in the jurisprudence of England are so called, as contradLstin- guished from the common law. So that in the courts of the United States equity jurisdiction generally embraces the same matters of jurisdiction and modes of remedy as exist in England; and such cotirts exercise their jurisdic- tion as courts of law or courts of equity, as the subject of adjudication may re- quire. Robinson u. Campbell, ZWheat. 212, 223; Parsons v. Bedford, 3 Pet. 433, 447; 3 Story Com. on Const. 506, 507, 644, 645; United States v. How- land, 4 Wheat. 115; 7 Dane Air. art. 1, ch. 225; Foster v. Swasey, 2 Woodb. ^ M. 219. CHANGE. In the sense of altera- tion, change imports alteration merely, without signifying whether it is for the better or worse. If a change for the better, an improvement is intended, amendment (g. «.) is, in jurisprudence, the proper word. 'Change is sometimes used as an ab- breviation for exchange, as in the cita- tions from 4 Abb. Pr. n. s. and 3 Sneed, below. 'Change signifies a fixed place where merchants meet, at certain hours, for the transaction of business with each other; subject to such general rules or understand- ing as they thmk proper to be governed by. White V. Brownell, 4 Abb. Pr. n. s. 162, 190. The issuance of a dray ticket, bearing these words, " Dray ticket for fifty cents. Knoxville Iron Co.," is merely a method of keeping accounts with the draymen. Such ticket is not a 'change bill or ticket, the issuance of which is prohibited by statute, in Tennessee. State v. Fisk, 3 Sneid, 695. Change of grade, is not predicable of macadamizing a highway, even though the surface be elevated thereby. Warren v. Henly, 31 lovia, 31. Change of title. Where an insurance policy provides that in case of any change of title, &c., in the property insured the insurance shall become void, there must be more than a merely nominal change to CHARACTER 207 CHARACTER aroid the insurance. Ayres v. Hartford, &c. Ins. Co., 17 Imm, 176. Thus an assignment of insured property as collateral security is not a sale, transfer, or change of title, within the meaning of such a clause in a policy. Ayres v. Hart- ford Ins. Co., 21 lovM, 193. A mere agreement between the owner of property insured and another person to rep- resent to the creditors of the owner, in order to prevent attachments, that it had been sold to such other person, does not avoid the policy, although the policy is upon con- dition that the insurance shall be void in case of any sale, transfer, or change of title. Orrell v. Hampden, &c. Ins. Co., 13 Gray, 431. But a transfer by one partner of his interest in the property insured to a co- partner, will, under such a condition, avoid the policy, though made without the con- sent of the other members of the firm. Hartford, &e. Ins. Co. v. Ross, 23 Ind. 179 ; s. p. Dreher v. Mtiia, Ins. Co., 18 Mo. 128 ; Tillon V. Kingston, &c. Ins. Co., 5 N. Y. 405 ; and see Keeler v. Niagara, &c. Ins. Co., 16 Wis. 523. So the expression change of title, in such a condition, does not include a mortgage. Hartford, &c. Ins. Co. v. Walsh, 64 III. 164. CHARACTER. 1. The qualities which distinguish a person ; the sum or result of the attributes of an individual. 2. Reputation; what persons gener- ally believe about the qualities of an individual. It would be well if character and reputation were used distinctively. Iji truth, character is what a person is; reputation is what he is supposed to be. Character is in himself, reputation is in the minds of others. Character is injured by temptations, and by wrong- doing; reputation, by slanders and libels. Character endures throughout defamation in every form, but perishes when there is a voluntary transgression; reputation may last through nimierous transgressions, but be destroyed by a single, and even an unfounded, accusa- tion or aspersion. But character has been used, again and again, in statutes and in the adjudications, in the sense of reputation: thus a libel is said to be an injury to character; the character of a witness for veracity is said to be im- peached; evidence is offered of a pris- oner's good character. The word character, in the New York act of March 20, 1848, punishing abduction of a woman of previously chaste character, for purposes of prostitution, means, not mere reputation, but actual qualities. To sus- tain a prosecution, the woman must have been actually chaste and pure, in conduct and principle, at the time of the commis- sion of the offence, or the commencement of the acts on the part of the accused which resulted in the abduction. But although she had previously fallen from virtue, yet if she has subsequently reformed and be- come chaste, she may be the subject of the offence declared in the statute. Carpenter V. People, 8 Barb. 603. The expression chaste character, in the New York act of 1848, confining the pun- ishment of seduction to cases of seducing females of previous chaste character, means actual personal virtue, — that the female was actually chaste and pure in conduct and principle, — not mere reputa- tion. Crozier v. People, 1 Park. Cr. 453; Safford v. People, Id. 474 ; People v. Ken- yon, 6 Id. 254. Character, in section 2586 of the Iowa code, — which provides that if any person seduce and debauch any unmarried woman, of previously chaste character, &c., — sig- nifies that which the person really is, in contradistinction to that which she may be reputed to be. Andre v. State, 5 Iowa, 389 ; Boak V. State, Id. 430. An unmarried woman who has been un- chaste may reform and acquire a chaste character, so that her subsequent seduction will be a crime within the Iowa Rev. Code, § 4209. State v. Carron, 18 Iowa, 372. Character is the slow-spreading influence of opinion arising from the deportment of a man in society ; as a man's deportment, good or bad, necessarily produces one cir- cle without another, and so extends itself till it unites in one general opinion. That general opinion is allowed to be given in evidence. Lord Erskine, org., in King v. Hardy, 24 St. Tr. 1079. Evidence as to a man's general character means evidence as to his reputation among those to whom his conduct and position are known. His disposition or tendency to com- mit the particular offence with which he is charged cannot be inquired into, nor will the individual opinion of a witness be re- ceived as testimony from which to form an estimate of the character of the accused ; but the testimony must be as to his general standing and conduct in the neighborhood where he Uves. Good character, in brief, consists, in its legal sense, in having an unblemished reputation up to the time of the particular transaction in question. Queen v. Rowton, 34 L. J. Mag. Cos. 57. Where the purpose of testimony is to impeach a witness for want of veracity, it is not improper to ask the person on the stand, what is the general reputation for truth of the witness sought to be im- peached. This is even more proper than to ask what is his general character for truth ; though the question is sometimes asked in the latter form, the word charac- ter then being synonymous with reputation. Knode v. WiUiamson, 17 Wall. 586. CHARCOAL 208 CHARGE CHARCOAL. The exception, in the internal reyenue laws of congress, of char- coal does not exempt bone-black from tax- ation. Bone-black and bone-dust are man- ufactures of bone, and as such are taxable. Neither the lexicographical, legal, commer- cial, nor popular meaning of charcoal in- cludes bone-black or "animal charcoal." Schriefer u. Wood, 5 Blatchf. 215. CHARGE, V. 1. To impose an obliga- tion or duty, particularly one for the payment of money, upon a person; or upon some specific property, as on an estate devised. 2. To accuse of a wrong or offence. 3. To instruct a jury as to the principles of law applica- ble to cases before them for examina- tion. Charge, n.; 1. A duty of paying money imposed, as by a devise, upon some person, or as a condition of taking some specific property. 2. An accu- sation of a wrong or ofEence. 3. A series of instructions to a jury, explain- ing the law applicable to cases pending before them. Chargeable: liable to or already afEected by an obligation or lia^ bility, particularly of making payment. Charged : subject to an obligation or liar bility; also, afiected by entries in ac- count, showing a payment due or ex- pected. Charges : entries, in account, of moneys due ; also, obligations im- posed upon a person to pay money, or discharge other duties. Chargeable signifies capable of being or becoming charged, as well as already sub- ject to charge. A statute requiring kin- dred of any poor person who shall become chargeable to any town to provide for his support, attaches when the necessity of providing for such person by the town in default of other means arises ; it is not delayed until the town has actually fur- nished necessaries. Walbridge w. Walbridge, 43 Vt. 617, 625. An instrument containing an accusation of crime is not objectionable because it purports to be or is styled an information, whereas the statute designates the state- ment to be made as a complaint. The books define information to be a charge, accusation, or complaint. It is wholly im- material which term is adopted. To change the name cannot change the legal effect. If the complaint filed be a substantial com- pliance with the statute which governs the case, it is suflicient. Lindville v. State, 3 Ind. 580. Compare Gardner v. State, 4 Ind. 632. The phrase, charged with crime, in Gen. Sts. ch. 170, § 1, — authorizing select- men to offer a reward to any person who in consequence of such oflEer secures any person charged with a crime, — construed according to the natural import of the words used, as well as with reference to the connection in which it stands, embraces only cases where there has been a charge of crime duly made by a complaint before a magistrate, or indictment by the grand jury, and the person so charged eludes ar- rest, so that he cannot be apprehended on a warrant by the use of ordinary vigilance and care. The phrase means something more than suspected or accused of crime by popular opinion or rumor, and implies that the ofEence has been alleged against a party according to the forms of law. Such is the sense in which it is manifestly used in Gen. Sts. ch. 170, § 9, where judges of courts and justices of the peace are author- ized to issue warrants for the apprehen- sion of persons " charged with offences ; " and in section 11, where an oflJcer to whom a warrant is issued is authorized to pursue into any county and apprehend the party charged ; and in section 12, where it is pro- vided that in certain cases a person against whom an offence is " charged in a warrant " may be admitted to bail. That it was not intended to have a different meaning in the section under consideration is clearly indi- cated by the fact that the offer of reward therein authorized is in terms confined to those who may " secure " the person " charged " with offences ; which manifestly implies that it was intended to apply only in cases where legal process had been pre- viously issued, by which a person might be lawfully arrested ; and by the language of section 6, which authorizes the governor of the commonwealth to offer rewards to those who may apprehend, bring back, and secure " any person convicted of or charged with " certain offences, and which clearly can apply only to cases where persons have been duly charged on legal process, and have escaped from actual custody thereon, or have avoided arrest. Day !'. Inhabitants of Otis, 8 Allen, 477. Charge, as used in Wis. Laws 1868, ch. 101, — requiring a judge's charge to be re- duced to writing at request, &o., — does not apply to a mere direction to the jury to find for the plaintiff. Grant v. Conn. Mut. L. Ins. Co., 29 Wis. 125. Charge and discharge. A phrase descriptive of the mode formerly pur- sued in taking an account before a master in chancery, in which, usually, the complainant first exhibited the items of his claim, in a form called a charge ; after which the defendant sub- mitted his discharge, setting forth any contrary claims ; and, upon an examina- tion of both these, a report was made. See Dan. Ch. Pr. 1173; Smith Ch. Pr. 569. Charging order. The name bestowed, in English practice, upon an order allowed CHARGE 209 CHARITABLE by Stat. 1 & 2 Vict. ch. 110, § 14, and 3 & 4 Vict cii. 82, to be granted to a judg- ment creditor, that the property of the judgment debtor in government stock, or in the stock of any public company in England, corporate or otherwise, shall (whether standing in his own name or in the name of any person in trust for him) stand charged with the payment of the amount for which judgment shall have been recovered, with interest. (3 Stepli, Com. 587, 588.) Mozley Sr W. CHARGE DES AFFAIRES, or CHARGE D'AFFAIRES. The title of a diplomatic minister of a subordinate rank. He has not the title of minister, though he has charge of the presentation to the government abroad of affairs of his nation. His authority to act is usually made known by letters addressed to the minister of his nation; or the title is sometimes bestowed on a tem- porary substitute of a minister, during the latter's absence. CHARITABLE USES; CHARI- TIES. Many of the rules upon which ordinary devises or gifts of property will be held void, such as the rule against perpetuities, or the suspension of power of alienation, the rule requir- ing a certain and competent devisee, &c., are, in England, and in some of the United States, relaxed, when the object and purpose of devise, gift, or trust is of recognized benevolent character and public utility ; and devises and trusts may be sustained, upon the ground that the purpose to be accomplished by them is charitable, when, if such were not its character, they would be held void. Uses, which are in that degree benevo- lent, or conducive to the public welfare, that the courts (where the doctrine of charitable uses prevails), will sustain a gift to promote them, notwithstanding it would be held void if made for pri- vate benefit merely, are, in the technical language of the subject, called charita- ble uses; and gifts, devises, .and trusts to promote such uses are called charities ; though the two words are often used as convertible. The terms are generally understood in a very enlarged sense, as comprising not only gifts for the benefit of the poor, but endowments for the advancement of learning, and to institutions for the en- couragement of the arts and sciences, VOL. I. 14 and for any other useful and public pur- pose, as well as donations for pious or religious objects. In order, however, to arrive at their more definite and specific meaning, resort must be had to the stat- ute laws of England and of this country, defining what are charitable uses. Such uses were not unknown to the common law, but, in course of time, it became necessary for parliament to limit the extent and operation of the doctrine, and enumerate the uses which should be sustained as charitable. This was done by the Stat. 43 Eliz. ch. 4, which has since furnished the leading standard for determining what are valid charities. Those objects and purposes are consid- ered charitable which are expressly enumerated in this statute, and also those which, by analogy, are deemed within its spirit and intendment. The charitable objects enumerated are as follows: relief of aged, impotent, and' poor people; maintenance of sick and maimed soldiers and mariners; schools of learning, free schools, and scholars in universities; repair of bridges, ports, havens, causeways, churches, sea-banks, and highways; education and preferment of orphans; relief, stock, or maintenance for houses of correction ; marriages of poor maids ; supportation, aid, and help of young tradesmen, handicraftsmen, and per- sons decayed; relief or redemption of prisoners or captives ; aid or ease of any poor inhabitants concerning payment of fifteens, setting out of soldiers, and other taxes. Those gifts which, although not ex- pressly enumerated in the statute, have been held to be within its spirit and in- tendment, are principally as follows : Gifts for the advancement of religion, or connected with religious services or places, e.g., bequests for the ornaments of a parish church, for the stipend of a minister or curate, or for the augmen- tation thereof, for the distribution of bibles, for keeping in repair the church chimes; also, in assistance oi the poor, as of unsuccessful literary men; and, generally, all purposes which are of a public and legal nature. And since the toleration act (1 Wm. & M. ch. 18), a gift of any of these sorts in favor of dis- CHARITABLE 210 CHARITABLE senters or non-conformists is equally legal, provided it is not for a purpose deemed superstitious ; and Roman Cath- olics have been put upon the same foot- ing as Protestant dissenters, by Stat. 2 & 3 Wm. IV. ch. 115. In the United States, the law of char- itable uses has been recognized as part of the common law of the land. But it has been a subject of discussion in the courts, whether the law of charitable uses as it existed here and in England derived its origin from the statute of 43 Eliz. eh. 4, or from the civil law ; tipon this point conflicting opinions have been expressed, and contradictory conclusions have been reached. The question has also been discussed whether the law of charitable uses as it existed in England at the time of the American revolution, and the jurisdic- tion of the court of chancery over the subject, became, upon the adoption of state constitutions by the colonies, the law of their respective states; and conflicting opinions and decisions have- been evolved from this discussion. In the celebrated Girard case, in which all the leading authorities were examined and criticised, the supreme court of the United States held that there was a ju- risdiction in chancery over charitable trusts antecedent to the statute of Eliza- beth, and that although the statute was never in force in Pennsylvania, yet that the common law of that state had always recognized the chancery jurisdiction in cases of charities. Vidal v. Girard, 2 How. 155. The same rule is now recog- nized in most of the American states; and courts of equity, in most of them, take jurisdiction in carrying into effect charitable bequests, however general are the purposes and objects intended, if sufficiently certain to be intelligible, and without regard to the fact of the existence of a trustee capable of holding the legal estate. In some of the states this is done upon the theory of the com- mon-law jurisdiction of courts of equity over the subject; and in others, upon the ground that the provisions of the statute of 43 Eliz. have been adopted as a portion of the common law in those states. The provisions of the statute of Elizabeth have been substantially adopt- ed by enactment in some of the states, while in others its provisions have, in a like manner, been abrogated, and new and different purposes enumerated, to which charitable uses shall be limited. The definition of a charity is, a gift to a general public use which extends to the poor as well as the rich. Jones v. Wil- liams, 2 Amb. 651. The Stat. 43 Eliz. ch. 4, defining chari- table uses, is part of the common law of Massachusetts ; and, in determining what uses are charitable within the statute, the courts are to be guided not by its letter, but by its manifest spirit and reason, and are to consider not what uses are within its words, but what are embraced, in its meaning and purpose. Many gifts, which were not within the instances enumerated in the statute, have been sustained as char- ities, by English authorities, on the ground that they were within its spirit; and this liberal application of the statute is sustained in this state by the colonial statute of 1671, and the state Const, ch. 6, § 1, art. 1; § 2. Drury v. Inhabitants of Natiek, 10 Allen, 169, 177. The Stat. 43 Eliz. ch. 4, is the chief guide (in Massachusetts) in determining what uses are charitable. It distinguishes three classes, giving instances or specimens under each. 1. Eor the relief and assistance of the poor and needy. 2. For the promoting of edu- cation. 3. For the repair and maintenance of public buildings and works, particularly including churches. And gifts which are within the principle and reason of this stat ute are sustained by our law, although not included in the express enumeration of in- stances ; for charities are not confined at the present day to such as were known and in vogue in the time of Elizabeth. But valid charities, by our law, are such as can be attributed to one of the three classes of uses above mentioned. A charity, by our law, may be defined as a gift, to be applied, consistently with existing laws, for the bene- fit of an indefinite number of persons, either by bringing their minds and hearts under the influence of education or religion, by relieving their bodies from disease, suffer- ing, or constraint, by assisting them to es- tablish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of govern- ment. And whether the purpose is termed charitable, in the instrument making the gift, is immaterial : the question is whether it is charitable in its nature. Jackson v. Phillips, 14 AUen, 539. But gifts for purposes prohibited by or opposed to the existing laws cannot be up- held as charitable, even if for objects which would otherwise be deemed such. Under this principle, trusts whose expressed pur- pose is to bring about changes in the laws or the political institutions of the country, although by lawful publications and efforts, are not " charitable " in. such a sense as to CHARITABLE 211 CHARTER be entitled tqpeculiai; faror, protection, and perpetuation from the courts; whose duty it is to expound and administer the laws as (hey exist. Thus a bequest in trust to- be expended "to secure the passage of laws granting women, whether married or unmarried, the right to vote, to hold office, to hold, manage, and devise property, and all other civil rights enjoyed by men," can- not be sustained as a charity ; for such a bequest aijns directly and exclusively to change the laws, and its object cannot be accomplished without changing the consti- tution also. The courts are limited to ex- pounding the laws as they stand, And those laws do not recognize the purpose of overthrowing or changing the existing laws, in whole or in part, as a charitable use. lb. A gift " to the poor " generally, or to the poor of a particular town, parish, age, sex, or condition, is a good charitable gift ; for it is the number and indeflniteness of the objects, and not the mode of relieving them, which ia the essential element of a charity. It makes little difference to the contributors, the poor, or the public, and none in the nature of the charity, what is the mode of distributing relief. In the eye of the law, as of Christianity, almsgiving in secret is not less meritorious or charitable than the more open assistance of the poor in almshouses and hospitals. In every act of relieving the poor, by whatever means, the immedi- ate benefit is to the individual. Hunger, nakedness, disease, are personal, and the relief is also personal, and, in one sense, private. A good charitable use is public, not in the sense that it must be exe- cuted openly and in public, but in the sense of being so general and indefinite in its ob- jects as to be deemed of common and public benefit. Each individual immediately bene- fited may be private ; and the charity may be distributed in private, and by a private hand. It is public and general in its scope and purpose, and becomes definite and pri- vate only after the individual objects have been selected. Hence, where a testator be- queathed in trust, for the furtherance and promotion of the cause of piety and good morals, or in aid of objects and purposes of benevolence or charity, &c., and gave the trustees full discretion in expenditure, it was held that, by " objects and purposes of benevolencfe or charity, public or private," the testator intended general relief of the poor, either through public institutions or almsgiving by the agency of individuals; and that this was a good charitable bequest. Saltonstall v. Sanders, 11 Allen, ii&. The same principle was applied where the fund was given to trustees " to be by them applied for the promotion of agricul- tural or horticultural improvements, or cither philosophical or philanthropic pur- poses, at their discretion." Kotch v. Emer- son, 105 Mciss. 431. In a legal sense, a charity includes not only gifts for the benefit of the poor, but endow- ments for the advancement of learning, or institutions for the encouragement of sci- ence and art, without any particular refer- ence to the poor. Gerke v, Purcell, 25 Ohio St. -229. , Nothing is " a charity " in a legal sense except that which is limited to some chari- table use. An absolute gift or bequest, al- though to a benevolent society, is not a charity. In legal contemplation, charity and charitable use are convertible terms ; and there can be no charitable use without a trust. The term charitable uses was first used in contradistinction to superstitions, and employed to designate a class of uses which were deemed exceptions from the sweeping prohibitions of Stat. 23 Hen. VIII. ch. 10, against gifts to use of churches, &c., without any corporation. As used at the present day, it must be distinguished from mere liberality or benevolence. To consti- tute " a charity," the use must be public in its nature. Owens v. Missionary Soc. of M. E. Church, 14 N. Y. 380. CHARITY. The sentiment of be- nevolence, or willingness to give relief to persons in need; also, acts of benevo- lence, relief, services, or assistance ren- dered gratuitously to some one in need of them. A prominent instance of use of the term in law is its occurrence in statutes prohibiting labor upon the Lord's day: these very generally except works of charity. Charity, in its widest sense, denotes all the good affections men ought to bear towards each other : in a restricted and common sense, relief of the poor. Morice V. Bishop of Durham, 9 Ves. 399. Charity, as used in the Massachusetts Sunday law, includes whatever proceeds from a sense of moral duty or a feeling of kindness and humanity, and is intended wholly for the purpose of the relief or com-, fort of another, and not for one's own bene- fit or pleasure. Doyle o. Lynn, &c. E. E. Co., 118 Mass. 195, 197. CHABTA; CARTA. A pharter or deed ; such as carta de foresta ; Magna Charta. Also, sometimes, a statute. CHARTER. Originally this word seems to have been used as including all sealed instruments, or solemn acts in writing. It is not unfrequently met in old English books, in a sense equiva- lent to deed. But this broad and gen- eral use of the word is now practically obsolete. It is retained to denote writ- ings emanating from government, chiefly the following : 1. A written instrument setting forth privileges or an assm'ance of rights, CHARTER 212 CHATTEL granted by the sovereign power to the people, or to some large class of them ; such as Magna Charta, q. v., or the great charter. A charter is granted by the sovereign, a constitution estab- lished by the people. 2. An act of parliament, of congress, or of a state legislature, creating a cor- poration, is called the charter of the corporation. Charter is taken in our law for written evidence of things done between man and man. There are charters of the king, and those of private persons. Charters of the king are those whereby the king passeth any grant to any person or body politic ; as a charter of exemption, of privilege, &c. j a charter of pardon, whereby a man is for- given an offence. Charters of private per- sons are deeds and instruments for the conveyance of lands, &c. Jacob. CHARTER-PARTY. A lease of a vessel; a species of contract by which the owners of a vessel let her to an- other person, to be used by the latter in transportation for his own account. The term is an Anglicized form of the Latin charta parti, or French chartre parti ; and originated in a custom, long disused, that the writing embodying this description of contract was cut in two, and one part delivered to each of the parties, to be produced when re- quired. Neither one could then well make any fraudulent alterations or sub- stitute a counterfeit, as the new matter would not correspond with the portion in custody of the other party. The person who hires a vessel under a charter-party is termed the charterer, and the moijey agreed to be paid for the use of her is called charter-money. Charter-parties are of two kinds : one, in which the owner retains the charge of navigating the ship, but the hirer takes her whole capacity for his use; the other, in which the vessel is surren- dered to the hirer, who not only puts on board his cargo, but also finds master and crew, victuals the ship, and directs as to sailing her. A charter-party is not usually under seal. It should name the vessel and her master, also the immediate parties to the contract ; state the tonnage the vessel will carry, specify the places and times agreed upon for loading and dis- charge, and stipulate the amount of charter-money to be paid, and any allow- ance agreed on for delay. It is con- strued, like other commercial contracts, according to the intent of the parties. A charter-party is a mercantile instru- ment, by which one who would export or import goods engages for the hire of an entire vessel for the purpose, at a freight or reward thereby agreed for. Upon the execution of such an instrument, the ship is said to be chartered or freighted, and the party by whom she is engaged is called the charterer or freighter. But where, instead of taking the entire vessel, the owner of goods merely bargains for their conveyance, on board of her, for freight (other goods being at the same time conveyed for other proprietors), she is described not as a char- tered, but as a general, ship, and in thi^ case no charter-party is usually executed, but merely a bill of lading. {Cowel; 2 Steph. Com. 140.) Mozley ^ W. CHASE. In English law, chase sig- nifies a tract of land appropriated for keepiflg and hunting deer, foxes, &c. Some authorities distinguish a chase from a forest, and from a park, by say- ing that it is smaller than the first, and has fewer privileges incident to it; while it is of larger extent than a park, and stored with a greater diversity of game, and has more keepers to superintend it. Others say that a forest is no sooner in the hands of a subject than it loses its name, and at once iDecomes a chase: so that a chase is distinguished from a for- est on the one hand, in this respect, that the latter cannot be in the hands of a subject, and the former may be so ; and fi-om a park, on the other hand, in this respect, that the chase is not enclosed, and has not only a larger compass and more game, but also a greater number of keepers and officers. (See 4 Co. Inst. 314 ; Manw. Fw. Laws, 49 ; Crompt. Jurisd. 148 ; 2 Bl. Com. 38.) Jacob. Also, chase is used to mean the priv- ilege or right, independent of ownership of the land, of keeping beasts of chase, ' and hunting them, within a certain tract. CHATTEL. Strictly, the term chat- tels embraces every species of property less than a freehold in lands, and, when used to signify movable things only, should be qualified by prefixing " per- sonal ; " while interests in land (less than freehold) are properly designated chattels real. But chattels alone is CHATTEL 213 CHATTEL often, though loosely, used to signify movable articles, in distinction from all interests in lands, and from rights in action. The name gireu to thiogs which in law are deemed personal property. Chattels are divided into chattels real and chattels personal ; chattels real being interests in land which devolve after the manner of personal estate, as leaseholds. As opposed to freeholds, they are regarded as personal estate. But, as being interests in real estate, they are called chattels real, to dis- tinguish them from movables, which are called chatteh. personal. (Covid; 2 Bl. Com. 385-387 ; 2 Steph. Com. 2 ; Wms. R. P.^P.P.) MozUy^W. The difference between freeholds and non-freeholds, or chattel interests, consists, for the most part, in the fixity or non-flxity of their duration. It is the latter property, viz., uncertainty, that characterizes a free- liold ; It is the former, viz., certainty, that characterizes a non-freehold. Hence every tendency of a definite duration is a term ; i.e., a period accurately ascertained during whicli the interest or estate is to endure. The non-freeholds are deemed merely chat- tel interests, and differ from freeholds not only in quantity, but in order and kind; for freeholds are considered of greater interest than non-freeholds, and, therefore, if a term of one thousand years and an estate for life vest in the same person, in the same right, the term will merge in the life-estate, unless an intervening estate prevent such a union of interests. Chattel interests de- volve upon the personal representatives of the owner. Five species of estates rank as chattel interests: estates for years, from year to year, at will, by elegit, and on sufferance. Wharton. Chattels are divided into real and per- sonal. Chattels real are such as concern real estates, or landed property, and are so called because they are interests issuing out of such kind of property ; as the next presentation to a church, terms for years, estates by statute merchant, statute staple,x elegit, &c. Chattels personal are generally such as are movable, and may be carried about thie person of the owner wherever he pleases to go ; such as money, jewels, gar- ments, animals, household furniture, and almost every description of property of a movable nature. Things personal, how- ever, are not confined to movables ; for as things real comprise not only the land itself, but such incorporeal rights as issue out of it, so things personal include not only those tangible subjects of property which are. capable of locomotion, but also the incor- poreal rights or interests which may grow out of or be incident to them; to which class may be assigned the term incorporeal chattels. Brown, Chattels personal are movables only ; chattels real are such as savor only of the realty. Putnam v. Westcott, 19 Johns. 73. Chattels includes a term for years in lands. Barr v. Doe d. Binford, 6 Black/. 835. A lease for ninety-nine years, renewable for ever, by the common law, is only a chat- tel interest ; but, by the statutes of Ohio, is made real property. McLean v. Eockey, 3 McLean, 235. A title-deed is a personal chattel ; though it is so connected with and essential to the ownership of real estate, that it descends with it to the heir. Wilson v. Rybolt, 17 Tnd. 391. Chattels embraces living things : slaves, horses, cattle, hogs, &c. Pippui v. ElUson, 12 Ired. L. 61. Notes are chattels ; and the word chat- tels implies property or ownership. To aver, in an indictment for stealing securi- ties, that they were the goods and chattels of the owner, naming him, is a sufficient averment of ownership. People v. Hol- brook, 13 Johns. 90; People v. Frost, 1 Dougl. 42 ; State v. Bartlett, 55 Me. 200. That the rolling-stock of a railroad is not chattel property, see Bement v. Platts- burgh, &c. Co., 47 Barb. 104. That the phrase goods and chattels in- cludes coin, see Hall ti. State, 3 Ohio St. 575. It includes choses in action as well as those in possession. King v. Ford, 12 Cohe, 1; Byall V. Rolle, 1 Atk. 182. CHATTEL MORTGAGE. Amort- gage upon chattel property; usually, in practice, upon personal chattels, or movable articles ; for, when chattel in- terests in real property, or rights in action, are to be used as security, an as- signment, either expressed to be condi- tional and for the payment of the debt, or absolute in form, but accompanied by some counter-engagement for a return upon payment, is ordinarily employed; and is spoken of as an assignment as col- lateral security. There may, however, undoubtedly be a mortgage of a chattel real; of a lease for years, for example. The term chattel mortgage does not nec- essarily imply a sealed instrument. A bill of sale or other writing, intended as a secu- rity, though not under seal, is covered by the term. Ranch v. Oil Co., 8 W. Va. 36, 40. A chattel mortgage is a conditional transfer or conveyance of the property it- self. The chief distinctions between it and a pledge are, that in the latter the title, even after condition broken, does not pass to the pledgee, who has only a lien on , the property, but remains in the pledgor, who has the right to redeem the property at any time before its sale ; besides, the possession of the property must, in all cases, accompany the pledge, and, at a sale thereof by the pledgee to satisfy his de- mand, he cannot become the purchaser; whilst by a chattel mortgage the title of the CHAUD-IilEDLEY 214 CHECK mortgagee becomes absolute at law, on the default of the mortgagor, and it is' not es- sential to the validity of the instrument that possession of the property should be delivered, and, on the foreclosure of the mortgage, the mortgagee is at liberty to become the -purchaser, Wright v, Ross, 36 Cal. 414, 428, 441. The material distinction between a pledge and a mortgage of chattels is, that a mortgage is a conveyance of the legal title upon condition, and it becomes abso- lute in law if not redeemed by a given time ; a pledge is a deposit of goods, redeemable on certain terms, either with or without a fixed period for redemption. In pledge, the general property does not pass, as in the i case of mortgage, and the pawnee has only a specia.1 property in the thing deposited. The pawnee must choose between two rem- edies : a bill in chancery for a judicial sale under a decree of foreclosure, or a sale without judicial process, on the refusal of the debtor to redeem, after reasonable no- tice to do so. Evans v. Darlington, 5 Black/. 320; see also Jordan v. Turner, 3 Id. 309. CHAUD-MEDLEY. In the heat of an affray. An old term applied to de- scribe a homicide, the g^ilt of which is deemed extenuated by its having oc- curred in heat of passion aroused by an unpremeditated fight. Compare Chance-Medley. CHEAT, V. To defraud; to swindle. Cheat, a. . An act of defrauding or swindling; also, a person whp has per- petrated such act. To render cheating criminally punish- able, it must, as a general rule, be per- petrated by means of some false pre- tence, or by using some false token ; and the offence thus committed bears the name, in most of the United States, of false pretences, or, more fully, obtaining money (or property) by false pretences. Many acts which would be denounced as cheats by the principles of morality are not legally cheats ; as, where a person got possession of a promissory note by pretend- ing that he wished to look at it and then refused to return it to the holder, it was held a mere private fraud, not punishable criminally. People i'. Miller, 14 Johns. 371 ; and see Lambert v. People, 5 Cow. 578. A cheat or fraud, indictable at common law, must be such as would affect the pub- lic, such as common prudence cannot guard against; as by using false weights and measures, or false tokens, or where there is a conspiracy to cheat. People v. Babcock, 7 Johns. 201 ; People v. Johnson, 12 Id. 292 ; People a. Miller, 14 Id. 371. CHECK; CHEQUE. A written order or request, addressed to a bank or banker, directing the drawee to pay a specified sum, either to the bearer or to a payee named or his order. Soine of the definitions say that it is drawn by a person having money on de- posit in the bank ; but we think this is not a necessary element in the defini- tion. An order to pay money made by onQ who has no account with the bank designated is not the less within the word check, on that account. Such orders are sometimes drawp and passed, in good faith, between merchants, as memoranda of indebtedness merely, the word memorandum being indorsed on the face to signify they- are not to be presented, and these are called memo- randum 'checks; also, they are drawn and passed by mistake, or for purpose of fraud, and are then styled bog^s or flash checks. See Certified Check; Crossed Check. A check is an order for payment of money. Smith v. Branch Bank, -&c., 7 Ala. 800; State v. Crawford, 13 La. Ann. 300; People V. Howell, 4 Johns. 296. Checks, like bills, are negotiable instru- ments, generally payable to bearer, but sometimes to order, requiring, as essential, a drawer, drawee, and payee. Hewitt v. Goodrich, 10 Ala. 340. A draft drawn on a firm who do not ap- pear to be bankers is not to be deemed a check, but an inland bill of exchange. One thing which distinguishes a check is, that it is always drawn on a bank or banker. Harris v. Clark, 3 N. Y. 93. A check is an order to pay the holder a sum of money at the bank, on presentment of the check and demand of the money. No notice to the bank or acceptance by it is required, nor is it entitled to grace. It is payable on presentment, and not before. BuUard v. Randall, 1 Gray, 605 ; Bowen v, NeweU, 5 Sandf. 326. A check upon a bank, until accepted, is merely an order upon the bank. The bank is not liable upon it ; and it may be re- voked. Schneider v. Irving Bank, 1 Daly, 500. A bank-check is substantially the same as an inland bill of exchange ; and, in gen- eral, is governed by the law applicable to bills of exchange and promissory notes. Mintum v. Fisher, 4 Cal. 35 ; Succession of Kercheval, 14 La. Ann. 457 ; Barnet v. Smith, 30 N. H. 256 ; Cruger v. Armstrong, 3 Johns. Cas. 5 ; Harker v. Anderson, 21 Wend. 372 ; Woodruff v. Merchants' Bank, 25 Id. 673 ; Murray v. Judah, 6 Cow. 484. That a check is not a bill of exchange, see Conroy v. Warren, 3 Johns. Cos. '259. A bank-check is the appropriation of a CHIEF 215 CHILD specific sum, and differs from an ordinary bill of exchange. Stewart v. Smith, 17 Ohio St. 82 ; Anderton v. Shoup, Id. 125. A check is an order to the bank to pay the money of the drawer to the payee ; an appropriation of money ; of cash. A bill of exchange is a matter of credit. Ga. Na- tional Bank v. Henderson, 46 Ga. 487 ; see also Champion v. Gordon, 70 Pa. St. 474. A check differs from an ordinary bill of exchange in the following particulars : 1. It is drawn on a bank or bankers, and is payable immediately on presentment, without any days of grace. 2. It is payable immediately on present- ment, and no acceptance as distinct from payment is required. 3. By its terms it is supposed to be drawn upon a previous deposit of funds, and is an absolute appropriation of so much money in the hands of the bankers to the holder of the check, to remain there until called for, and cannot after notice be with- drawn by the drawer. Matter Of Brown, 2 .Story, 502 ; Lester ». Given, 8 Bush, 357. CHIEF. Principal; one eminent in power or importance ; the most promi- nent or valua,ble of severaL The word "is most used in jurispni- dence, in phrases such as the following: Chief baron. The title of the chief judge in the English court of ex- chequer. Chief clerk. The clerk in a bureau, office, or establishment who has the first place, and usually the charge and oversight of the course of business, subject to the general direction of the head. In the organization of the public busi- ness of the United States government at Washington, there is in each depart- ment and each of the larger bureaus and offices a chief cferk; and the statutes provide that each chief clerk shall su- pervise, under the direction of his imme- diate supervisor, the duties pf the other clerks, and see that they are faithfully performed; also, that he shall take care that the duties of the other clerks are distributed with equality and uniform- ity; and shall make certain reports to his superior. The Stat. 15 & 16 Vict. ch. 80, § 6, authorized the appointment of chief clerks of judges in equity, to act in the place of the abolished masters in ordi- nary. Chief justice. The title very gen- erally given to the principal judicial officer of any superior court of justice in Great Britain or throughout the United States. The title imports the powers and duties of a presiding officer, and a certain general charge and care of the routine and' course of business of the court; but not, usually, any greater powers, or more authoritative vote in the decision of causes. See Associate. Chief justiciar. Under the early Norman kings, the highest officer in the kingdom next to the king. Chief rents, were the annual pay- ments of freeholders of manors; and were also called quit-rents, because by paying them the tenant was freed from all other rents or services. 2 Bl. Com. 42. Examination in chief. The first or principal examination of a witness by the counsel of the party for whom he is called j more commonly called the direct examination. Tenants in chief. In feudal lan- guage, tenants who hold immediately under the king; otherwise called ten- ants in capite. Jacob ; Mozley Sf W. CHILD. Is used, irrespective of par- entage, to denote a young person of either sex; and in this sense signifies, strictly, one who has not reached pu- berty, though often used without any very distinct implication as to years, . other than that it means youthfulness, tender age, early years. Chitty, indeed, says (Med. Jur. ch. xii. p. 437), that medical authorities arrange the subject of age under six principal periods ; as in- fancy, childhood, boyhood or girlhood, adolescence, adult age, and old age, and consider childhood as extending from the completion of the first to the completion of the second dentition ; but this complex division and precise no- menclature is not to any extent regard- ed in jurisprudence, where it is not uncommon to speak of the rights of and protection extended to a child be- fore birth, and, on the other hand, to apply the term to those who have nearly reached legal majority. On account of this vagueness of the term, statutes par- ticularly relating to the control of chil- dren very usually specify the ages in- tended. Thus, the Stat. 36 & 37 Vict., to regulate employment of children in agriculture, declares that child in the CHILD 216 CHILD act means a child under twelve years. The New York act of 1853, ch. 185, rela- tive to idle and truant children, speaks of " any child between the ages of five and fourteen years;" and the act of 1874, eh. 116, speaks of " any child under the age of sixteen years." Child is also used, irrespective of age, to denote parentage or descent, or as equivalent to offspring; and in this sense signifies, strictly, lawful issue be- gotten or born of one's body, and in the first degree of descent; though often used, and not improperly, especially when accompanied by qualifying words, in a broader sense. The two senses of the term are quite distinct. Thus, when it is used in a statute chartering an asylum or hospital for children, authorizing apprenticeship of children, regulating attendance or instruction of children at schools, or punishing child-stealing, or abuse of a female child, or in decisions upon the competency of a child to testify, no suggestion is involved as to parentage; the distinguishing element which con- stitutes the child is youthfulness. Upon the other hand, when it is used in a statute regulating the descent or distri- bution of property, or in deeds or wills giving property to a grantor's or a testa- tor's children, age must be laid wholly out of view; a man, of sixty wiU inherit or take under the designation of a child, as surely as an infant wiE, if proper proof of parentage is made. The following are representative de- cisions upon the different distinctions and refinements in the use of the word in the law : A female ceases to be a child, within a statute defining classes of females on whom rape may be committed, and becomes a woman, at the age of puberty, and not at the age of majority. Blackburn v. State, 22 Ohio St. 102. Whether child is a word of purchase or of limitation, &c. In the construction of devises, child or children is naturally and primarily a word of purchase ; and this effect will be given to it in the absence of any thing to show that a different meaning was intended, or must be attributed in order to carry into effect the purpose of the testator. Re Sanders, 4 Paige, i^^; Murphy w. Harvey, 4 Ediv. 131 ; Armstrong v. Moran, 1 Bradf. 314; Rogers K. Rogers, 3 PTend . 503 ; Chrys- tie ». Phyf e, 19 N. Y. 344 ; Stokes v. Tilly, 9 N. J. Eg. 130; Bowers v. Bowers, 4 Heisk. 293; Stubbs v. Stubbs, 11 Humph. 43; Dewitt V. Dewitt, 11 iSim. 41 ; Doe v. Perryn, 3 Dumf. Sr E. 484; Came v. Eoch, 7 Bing. 226. In the natural and primary sense of the word children, it implies immediate off- spring, and, in its legal acceptation, is not a word of limitation, unless it is absolutely necessary so to construe it in order to give effect to the testator's intention. Echols v. Jordon, 39 Ala. 24. "When an intention appears on the part of a testator to use child or children as a word of limitation, that construction will be placed upon it, in order to give effect to the intent. Stokes v. Tilly, 9 N. J. Eg. 130. In a devise or conveyance to a person and the children of his body, the word chil- dren is not one of limitation, but of pur- chase, and creates a remainder. Beacrof t v. Strawn, 67 ///. 28. In a conveyance to an unmarried woman and her children, children is a word of pur- cliase, and she takes a life-estate, with re- mainder to her children. Fales v. Currier, 55 N. H. 392. In a devise of lands to a woman and her children, she having children living at the time, the word children must be taken as a word of purchase, and the children will take a joint estate with the mother. Jones V. Jones, 13 N. J. Eg. 236. The testator devised to his daughter "J, and such her child or children as shall, at her decease, be living, and shall have attained, or shall thereafter attain, the age of twenty- one," all the residue of his estate, and the re- version, remainder, rents, &c., " to her sole and separate use," as though she were un- married. It was held that J took an estate for life. The words " child or children " in such a provision are words of purchase, and the remainder is contingent. Tayloe v. Gould, 10 Barb. 388. A deed was made " to A and B during their lives to hold in moieties, and at their death one moiety to the children of A and their heirs, and the other moiety to the children of B and their heirs." It was held that " children " and " their heirs " were words of purchase, not of limitation. Perry V. Calhoun, 8 Humph. 551. The words " children for ever," occurring in a devise of real estate, were held to be, when construed with the context, words of inheritance only, and to have been used in the sense of heirs, or heirs of the body. Moran v. Dillehay, 8 Bush, 434. " Children, issue of their or either of their bodies," are necessarily words of purchase in a deed. Melsheimer v. Gross, 58 Pa. St. 412. How compared with " heirs " and " issue." Children is ordinarily a word of descrip- tion, limited to persons standing in the same relation, and has the same effect as if all the names were given ; but heirs, in the absence of controlling or explanatory words, in- CHILD 217 CHILD eludes more remote descendants^and is to te applied per stirpes. Balcom v. Haynes, 14 Allen, 204. The word children, in a will, should not be construed as synonymous with heirs, when to do so would conflict with testator's inten- tion. That Intention will be effected by applying the word children to the personal property, and the word heirs to the lands. Akers v. Akers, 23 N. J. Eq. 26. The word heirs, in its natural significa- tion, is a word of limitation ; and it is pre- sumed to be used in that sense, unless a contrary intention appears. But the term children, in its natural sense, is a word of purchase, and is to be taken to hare been used as such, unless there are other expres- sions in the will showing that the testator intended to use it as a word of ^imitation only. Be Sanders, 4 Paige, 293 ; Bogers v. Rogers, 3 Wend. 503. Children, in a will, has not ordinarily the technical force of issue in a limitation over. Sherman v. Sherman, 3 Barh. 385. Children, in a devise, may be construed issue, when necessary to efieetuate the manifest intention of the testator ; as in a devise to a married woman, " to her and her children for ever." Merryman v. Merryman, 5 Mmf. 440. It may be construed issue, or heirs of the body. Farkman v. Bowdoin, 1 Sumn. 359. There is a well-settled distinction between the import and technical eSect of children, and of heirs of the body, as these expres- sions are used in wills. Johnson v. Johnson, 2 Mete. 331. The natural and proper meaning of child or children, in a will, is issue in the first de- gree, immediate lineal descendants. That meaning should be assigned, unless there is something in the context to show a different intent. Wharton v. Silliman, 22 La. Ann. 343 ; Sherman v. Sherman, 3 Barb. 385 ; Moon». Stone, 19 Gmtt. 130, 328; Hussey V. Berkeley, 2 Eden, 194. Children, in a will, may include issue, however remote, and will be held to include such issue whenever the reason of the case demands it. Prowitt v. Rodman, 37 N. Y. 42. Are grandchildren included % The words " child " and " children " do not, in natural and proper signification, nor as ■ ordinarily used in wills, deeds, &c., include a grandchild or grandchildren. They should be construed, in absence of something to show a different intent, as meaning descend- ants in the first degree ; the first generation of offspring. Ingraham v. Meade, 3 Wall. Jr 32 ; Feit v. Vanatta, 21 A^. J. Eq. 84 ; Willis V. Jenkins, 30 Ga. 167 ; Mowatt v. Carow, 7 Paige, 328; Marsh v. Hague, 1 Edw. 174; Stires v. Van Rensselaer, 2 Bradf. 172 ; TUlinghast v. D'Wolf , 8 R. 1. 69. Children, in a will, may be read as in- cluding grandchildren, in two classes of cases only : Where the bequest or devise must be inoperative, unless the word is thus extended ; and where the context clearly shows that the testator intended to embrace grandchildren. Brokaw v. Peterson, 15 N. J. Eq. 194; Churchill v. Churchill, 2 Mete. (Ky.) 466; Mowatt v. Carow, 7 Paige, 328; Cromer v. Pinckney, 3 Barb. Ch. 466, 476 ; Phillips V. Beal, 9 Dana, 1 ; Marsh v. Hague, 1 Edw. 174 ; Tier v. Pennell, Id. 354 ; s. p. Walker v. Williamson, 25 Ga. 549; WiUis V. Jenkins, 30 Id. 167; Denny v. Closse, 4 Ired. Eq. 102; Ward v. Sutton, 5 Id. 421 ; Mordecai ». Boy Ian, 6 Janes Eq. 365 ; Jarden's Estate, 3 Phila. 438 ; Tipton v. Tip- ton, 1 Coldw. 262. Children can be extended to include grandchildren, only from the context in which it occurs, or from its use in a case where the person using it must know that there neither then is, nor can afterwards be, any person within the first generation to whom it can be applied. Willis v. Jenkins, 30 Ga. 167. Only where there can be no other con- struction. Beeves v. Brymer, 4 Ves. 698. The word children sometimes embraces grandchildren ; but this is only under particu- lar circumstances, as where there are no per- sons to answer the description of children in the primary sense ; or where there could not be any such at the time or in the event con- templated ; or where the testator has clearly shown, by the use of other words, that he used the word children or grandchildren, as synonymous with issue or descendants generally. Heyward v. Hasell, 2 S. C. 510. Where a testator gave certain estate to his children, to be equally divided between them, such as have received advancements to account therefor, and, among them, nam- ing T as having, " in his lifetime," received a specified amount, it was held that the word children included his grandson, T. D., the son of T. Scott V. Nelson, 3 Port. 462. Children, in a deed of gift conveying slaves to be held in trust for a married woman, so long as her marriage relation should subsist, and, upon its dissolution, to go absolutely " to the present and future children, the offspring of said marriage, that may be living at the time of the hap- pening of such dissolution of marriage," was held to be used in its ordinary sense, and not to include grandchildren. McGuire V. Westmoreland, 36 Ala. 594. Where a testator provided in his will that the balance of his estate, after paying his debts, should be equally divided among his children, it was held that grandchildren living at the time of his death took no part of the estate under the will. Hopson v. Commonwealth, &g., 7 Bush, 644. A devise to tlie children of the testator's sister, one of whom was dead at the time of the execution of the will, passes nothing to the descendants of such decedent. Sheets V. Grubbs, iMetc. (Ky.) 339. In a codicil authorizing executors to ap- propriate a certain fund to the widow of the testator's deceased son, " for the benefit of her children until the estate shall be finally settled," the word children does not CHILD 218 CHILD embrace grandchildren. Tayloe ». Mosher, 29 Md. 443. The words " such of my children as shall then be Uvilig," were held not to include a child living at the time named, of a child who was dead. Thompson u. Ludington, 104 Mass. 19.3. Where it appeared from the will that the testator understood the distinction between children and issue more remote, the court held that the latter could not be included in a division directed to be made among chil- dren. Boylan v. Boylan, Phill. Eq. 160. A remainder " to children and their heirs," includes the testator's granddaugh- ter. Neave v. Jenkins, 2 Yeates, 414. Under Stat. 43 Eliz. ch. 2, § 7, requiring 'the father and grandfather, &c., or the chil- dren of any poor person, to maintain him, it has been held that the word children does not include grandchildren, and that a grand- child is not liable for the maintenance of his grandfather. Maund v. Mason, L. R. 9 Q. B. 254. The word children, in the act of congress of June 4, 1852, for the relief of surviving soldiers of the revolution, and the acts in addition thereto, embraces the grandchil- dren of the deceased pensioner, whether their parents died before or after his de- cease J and the grandchildren are entitled, per stirpes, to a distributive share of the pension. Walton v. Cotton, 19 Sow. 355. Are illegitimates included % The general rule is that children, in a bequest or devise, means legitimate chil- dren.' Under a devise or bequest to cMl- dren, as a class, natural children are not included, unless the testator's intention to include them is manifest, either by express designation orneeessary implication. Heater V. Van Auken, 14 N. ./. Eq. 159 ; Gardner v. Heyer, 2 Paige, 11. When legitimate cliildren exist at the time of making the "will, so as to Satisfy the words of the devise or bequest in their primary sense, an illegitimate child cannot take under' a general devise or bequest to children, as a class, unless something ap- pears on the face of the will to show an intention to include others besides legitimate children. Collins v. Hoxie, 9 Paige, 81 ; s. p. Cromer «. Pinckney, 3 Barb. Ch. 466 ; Cart- wright w. Vawdry, 5 Ves. 530; Gardner v. Heyer, 2 Paige, 11; RadcltfEe v. Buckley, 10 Ves. 195 ; Harris v. Lloyd, Turn. Sf Russ. 810; Swaine v. Kennerly, 1 Ves. ^ Bea. 469. If there are no legitimate children, it is allowable to prove the situation of the tes- tator's family, to enable the court to ascer- tain that, in a devise to children, he intended natural children. Gardners. Heyer, 2 Paige, 11. An allegation that certain named persons " are his only legitimate children," is not a sufficient averment that they are the only heirs-at-law of the decedent. Martin ». Martin, .22 Ala. 86. A testator, who was one of two illegiti- mate cliildren of the same parents, devised certain land to his "mother," naming her, and to " her children for ever." By a sub- sequent clause, he made certain bequests to his " sister," the other illegitimate child, by name. Held, that the term children, in the devisBj did not include the illegitimate daughter. Shearman v. Angel, 1 Baileii Ch. 351. " The rule that a limitation over, in a will, upon the death of a legatee leaving no children living at his death, has reference to legitimate children only, is not affected by a statute enabling illegitimate children to inherit. Thompson v. McDonald, 2 Dev. Sr B. L. 463. By the common law, "child" and "chil- dren," when used in statutes, wills, and legal instruments generally, meant legitimate child, &e. But, as used in the early Con- necticut statutes of distributions, it includes illegitimates as well as legitimates. So held in a case where the right to take through the motherj not the father, was involved. Dickinson's Appeal, 42 Conn.. 491. Children, as used in the Illinois statute of wills, concerning illegitimates, is used in the sense of ofEspring of the mother, and is not confined to children born in lawful wedlock. Kogers v. Weller, 5 Biss. 166. Children, as used in Mass. Rev. Stat. ch. 62, § 21, relating to wills, does not include an illegitimate child ; and unless such child is provided for eo nomine, he cannot share in the testator's estate. Kent v. Barker, 2 Gray, 535. Bastards are not comprehended under the word children, in the Mississippi statute Of descents and distribution of estates. Por- ter V. Porter, 8 Miss. 107. Are step-children included ? The w^ord children, in a will, should be construed as meaning full, lineal , descend- ants only, and not as embracing step-chil- dren, unless a different intention is clearly shown. Barnes v. Greenzebach, 1 Edw. 41 ; Matter of Hallet, 8 Paige, 375; Cutter v. Doughty, 23 Wend. 518. Especially and where the testator has, in other parts of his will, spoken of a step- child in distinction from children, this will afford a strong presumption that he did not intend to include such step-child or his issue in a devise to children and grandchildren. Barnes «. Greenzebach, 1 Edw. 41; Law- rence V. Hebbard, 1 Bradf. 252. Under a devise to "my wife and chil- dren," the children of the wife only are not entitled, but the children of the husband, whether born before or after the marriage of the surviving, or of a prior deceased, wife, will take. Carroll ». Carroll, 20 Tex. 781. A step-child has been deemed a child within the rules that where a child resides in his father's household, receiving support and rendering services, neither party can afterwards sustain a claim against the other for compensation. Sharp v. Cropsey, 11 Barb.'2,2i ; Williams v. Hutchnison, 6 Barb. 122, 3 iV. r. 312. CHILTEKN 219 CHOSE ■ A step-chijd has been deemed a child ' within the rule giving a father an action for seduction of his daughter. Hartley v. Eichtmeyer, iN.Y.SS; Bracy v. Kibhe, 31 Barb. 273; Femslee v. Moyer, 3 Waits Sr S. 416 ; Edmonson v. Machell, 2 Dumf. Sf E. 4 J Irwin v. Dearman, 11 "East, 23. Under the New York statute, 1 Rer. Stat. 614, §§ 1, 2, — that the father, mother, and children of any person unable to support him- self must maintain him, — a husband is not obligable to maintain his wife's child by a former husband ; for the statute extends only to natural relatives. Gay v. Ballou, 4 Wend. 403 ; Williams v. Hutchinson, 5 Barb. 122, 3 N. Y. 312 ; Bartley ». Ric-htrayer, 3 N. Y. 38; Elliott v: Lewis, 3 Edw. 40. Adopting such child takes authority and liability of father. Gorman v. State, 42 Tex. 221 ; Mowbry ». Mowbry, 64 J«. 383. Are after-born children included? A general bequest, by a testator, to his children, will, in general, be construed to embrace all his children at the time of his death, as well those bom after the making of the will as those born before. Chase «. Loekerman, 11 Gill S/- J. 185; Walker v. Williamson, 25 Ga. 549. A bequest to children as a class, to take effect af tfer the termination of an interven- ing estate, will include after-bom children. Bowers v. Bowers, 4 Heisk. 298. A devise to " all the children " of a per- son, as a class, will include those only who are living at the time of the testator's death. Lorillard v. Coster, 5 Paige, 172. Under a devise to " my children," it has been held that only those living at the death of the testator can take ; and the grand- children take nothing. Jackson v. Staats, 11 Joins. 337. A posthumous child is entitled to a dis- tributive share under the statute of distri- butions. ■ Hill V. Moore, 1 Murph. 233. A devise to the children of the testator, in general terms, does not include a post- humous child ; and he may claim, under the statute of Virginia, as pretermitted by the will. Armstead v. Dangerfield, 3 Munf 20. Childish, impUes a degree of reason or intelligence. Mulloy v. Ingalls, 4 Neb. 115. Child's part, ex vi termini, imports as large a share as any child has. Davis v. Duke, Cam. §• N. 361. CHILTERN HUNDREDS. The Chiltern Hundreds are three tracts, Stoke, Desborough, and Bonenham, which were, in former years, it is said, much infested by robbers, to repress whom the oflSce of steward was created. His duties long ago ceased; and the office is now a fiction, used by mem- bers of parliament who wish to resign. By Englis]i law, one who has been elected member of parliament is under obligation to serve, and cannot resign; but, by statute,' if he takes office under the crown, his seat is thereby vacated. Therefore, a member desir- ing to return to private life suggests to the lords of the treasury that he should be appointed 'steward of one of the Chiltern Hundreds. The appoint- ment is made, as a matter of course; and, being announced, the seat of the member becomes vacant, and may be filled by a new election. The steward then resigns his stewardship. {May's Pari. Prac. 576; 2 Hatsell, 41; Rogers Elect.) Bouvier. CHIROGRAPH. An instrument of gift or conveyance attested by the subscrip- tion and crosses Of the witnesses, and which was in the Saxon times called chirographum, and which, being somewhat changed in form and manner by the Normans, was by them styled charta. Anciently, when they made a chirograph or deed which required what is now called a counterpart, they engrossed it twice upon one piece of parchment con- trariwise, leaving a space between, in which they wrote in great letters the word chiro- graph, and then cut the parchment in two through the middle of the word, concluding the deed with In cujus rei testimonium utraque pars mutuo scriptis presentibus fide media sigil- lum swum fecit apponi. This was afterwards called dividenda, because the parchment was so divided or cut. And the first use of these chirographs was in Henry IH.'s time. Chirographs were also of old used for a fine. {Cowel.) Brown. Chirographer of fines. The title of the ofiicer of the common pleas who en- grossed fines in that court so as to be acknowledged into a perpetual record. Cowd. cAltrUi^^p^ - ^H-./r /; ^ CHOSE. Thing; any matter of per- sonal property. The word is little used alone; but the phrase chose in action recui-s frequently. Chose is used in the common law with divers epithets ; as chose local, chose tran- sitory, and chose in action. Chose local is such a thing as is annexed to a place, as a mill, and the like ; and chose transitory is that thing which is movable, and may be taken away, or carried from place to place. Chose in action is a thing incorporeal, and only a right ; as an annuity, obligation for debt, &c. ; and generally any cause of suit for any debt, duty, or wrong. Jacob. Chose in action is any right to dam- ages, whether arising from the commission of a tort, the omission of a duty, or the breach of a contract. Pitts v. Curtis, 4 Ala. 350 ; Magee v. Toland, 8 Port. 36. The phrase chose in action is now not confined to demands upon which there is a present, complete right of action. A note, bond, or other promise not negotiable, is a chose in action, before the promisor or CHRISTIAN 220 CHURCH obligor is liable to an action on it, as well as after. A note for money, payable on time, is a chose in action as soon as it is made, and is immediately assignable. So a note payable in work, after a certain day, to the promisee or bearer, on demand, is a chose in action, and assignable before or after that day, and before demand, though no action could be maintained on it till after maturity and demand. Haskell v. Blair, 3 Cush. 534. Chose in action includes all rights to per- sonal property, not in possession, which may be enforced by action ; demands arising out of torts as well as contracts. Gillet k. Fair- child, 4 Den. 80. As used in the United States bankrupt law of 1867, § 14, specifying what rights of action pass to the general assignee, the phrase does not include an action for malicious prosecution. Noonan v. Orton, 34 Wis. 259. Chose in action is a phrase which is some- times used to signify a right of bringing an action, and, at others, the thing itself which forms the subject-matter of that right, or with regard to which that right is exercised ; but it more properly includes the idea both of the thing itself and of the right of action as annexed to it. Thus, when it is said that a debt is a chose in action, the phrase conveys the idea, not only of the thing it- self, i.e., the debt, but also of the right of action or of recovery possessed by the per- son to whom the debt is due. When it is said that a chose in action cannot be as- signed, it means that a thing to which a right of action is annexed cannot be trans- ferred to another together with such right. Brown. Chose in possession is \rhere a person has not only the right to enjoy, but also the actual enjoyment of, the thing. Wharton. CHRISTIAN, adj. Pertaining to Christ or his religion ; professing Christi- anity. Webster. It is also used in the sense of ecclesiastical, as a Christian court ; and to denote the name given in baptism to a person, or the first name by vrhich he is called, as distinguished from the family name, or surname. Christian, n. : One who believes in, or is supposed to assent to, the doctrine and precepts taught by Christ. Christian is used in the New Hampshire constitution, in its ordinary sense, to desig- nate one who believes or assents to the truth of the doctrines of Christianity, as taught by Jesus Christ in the New Testament, or who, being born of Christian parents or in a Christian country, does not profess any other religion, or belong to any of the other religious divisions of men. This is the sense in which the word is ordinarily used in constitutions and statutes and legal documents, and refers to persons commonly known as nominally Christians, rather than to those who, professing the faith of some particular church, are termed Christians, in the theological or sacred sense of the term. Hale ti. Everett, 53 N. H. 9. CHRISTIANITY. The system of doctrine and precepts taught by Christ; the religion of Christ. Christianity is part of the common lav?, both in Eng- land and in this country, though in a somewhat more restricted sense in parts of the latter; and to maliciously revile it is an indictable offence. Common- wealth ». Kneeland, 20 Pick. 206; Peo- ple V. Ruggles, 8 Johns. 290; Chapman V. GiUett, 2 Conn. 41 ; UpdegrafE v. Com- monwealth, 11 Serg. §• R. 894; State v. Chandler, 2 Harr. (JOel.) 553; 4 Bl. Com. 60; Smith v. Sparrows, 4 Bing. 84; LindenmuUer v. People, 33 Barb. 548; Rex v. Carlile, 3 Barn, if Aid. 161; Rex i>. Waddington, 1 Bam. Sf C. 26; Vidal V. Girard, 2 How. 103; see Cin- cinnati Board of Education v. Minor, 23 Ohio St. 211. CHURCH. 1. A building consecrated to Christian worship. In English eccle- siastical law, it is sometimes called a benefice, and includes the glebe, parson- age, and tithes. 1 Crabb's Real Prop. 77, § 90. The fabric of the church con- sists of the nave or body of the church, with the aisles, the chancel, and the steeple. Administration of the sacra- ments and sepulture must be annexed to a place of worship before it is entitled in law to be adjudged a church. • 2. The word is also applied to a body of persons united under one form of government by the profession of the same Christian faith and the observance of the same ritual and ceremonies; in this sense, it may mean either a single body of worshippers, or that large mass of believers of a common system of tenets, who, scattered throughout the country, and meeting in many separate bodies, are yet united in general faith and denominational organization. - Church may mean either the building consecrated to the worship of God, or an assembly of persons united by the profes- sion of the same Clu-istian faith, met for religious worship. Robertson v. Bullions, 9 Barb. 64, 95. Church and society are popularly used to denote the same thing ; namely, a rehgious body organized to sustain public worship. Society w. Hatch, 48 N. H. 393. Chiirch applies to the communicants and CHURCH 221 CIRCUIT baptized persons rather than to the society at large. Ayres v. Weed, 16 Conn. 291. The body of communicants gathered into church order, according to established usage, in any town, parish, precinct, or religious society, established according to law, and actually connected and associated therewith for religious purposes, for the time being, is to be regarded as the church of such society, as to all questions of prop- erty depending upon that relation. Steb- bins V. Jennings, 10 Pick. 193 ; see also Anderson v. Brock, 3 Me. 247. A congregational church is a voluntary association of Christians united for disci- pline and worship, connected with, and form- ing a part of, some religious society, having a legal existence. Anderson v. Brock, 3 Me. 248. Church of England is that ecclesiasti- cal organization recognized and endowed by the government of England, and comprising in its doctrine and discipline the national faith. No person can suc- ceed to the British crown who shall not jom in communion with it, as by law established ; and by the coronation oath the sovereign is bound to maintain the Protestant or reformed church estab- lished by law, and to preserve to its bish- ops and clergy all rights and privileges as by law do or shall pertain to them. Church rate. A sum assessed (by English law) for the repair of parochial churches by the parishioners in vestry assembled. In England, the reparation of the body of the church belongs to the parishioners, and the power of taxing themselves for that purpose is vested solely in them. The church- wardens, as such, have no power to impose a church rate ; but if they give notice of a vestry for that purpose, and if no other parishioners attend, they may alone make and assess the rate. It has been decided that it is incumbent on a parish to impose a rate for the maintenance of the church; but, as the payment can only be enforced by ecclesiastical cen- sures, it may be resisted with impunity; and this has recently been the result in many parishes. Church-warden. The name of office of the guardians or keepers of the church building and property; the representa- tives of the body of the parish. In some ecclesiastical corporations, they are cre- ated by charter, and their rights and duties definitely explained. In Eng-> land, they are sometimes appointed by the minister, sometimes by the parish in vestry assembled, and sometimes by both together, as the custom of the place directs. In general, the minister chooses one, and the parishioners an- other. They are chosen yearly in Easter week, and have the care and manage- ment of the church or building, the utensils and furniture, the church-yard, certain matters of good order concerning the church and church-yard, the endow- ments of the church, &c. Bacon Abr. Their capacity to hold property for the church is, by the common law, lim- ited to personal property. 9 Cranch, 43. In the United States, the term is used, we believe, only in churches of the Epis- copalian form of government; and the wardens are chosen by the attendants upon or members of the various societies. CIRCUIT. Originally, one of several parts or divisions of the territory over which a court has jurisdiction, through which one of the judges of the court travels, by appointment, for the pur- pose of holding court, chiefly for jury trials. For a long, intermediate period in English and American jurisprudence, the type of organization of a court of principal and general jurisdiction was, that the territory should be divided into circuits, corresponding in number with the judges of the court ; that one judge should be assigned to each circuit, and make a periodical journey through it, holding court at each shire, town, or other designated place, for the trial, in the first instance, of causes arisen and ready there, which aiTangement pro- moted the convenience of jurors and witnesses, who were not required to go far from their homes in order to attend the various trials ; and that af ijprwards the several judges should hold a session together, — at the capital, usually, — for a review of the decisions made upon the circuits, and for hearing arguments upon questions of law which arose, but were not finally decided, on the circuit trials. Under these usages, circuit came to be used with several shades of mean- ing; for example, rulings at circuit is a phrase often used for rulings upon the jury trial, irrespective of whether that trial was had in a court travelling CIRCUIT 222 CIRCUIT^ through a circuit, or perhaps in one held only at one place. , In recent years, the i organization of courts in circuits has not been closely maintained : many local courts have been created, holding session? for jury trials steadily in one place; and several appellate courts have come into exist- ence, not composed of judges who have travelled circuit, and sit , together after- wards in fuU bench, but of judges appointed or elected for appellate juris- diction only. • . Circuit Courtis, in many of the states, a name for a court of general original jurisdiction, clothed with power to try, by judge and jury, the issues of fact in ordinary actions, but subject to a review of, its determinations in the supreme court of the state, or other appellate tribunal. Circuit court of the TTnited States. From a very early period in the judicial history of the United States, circuit courts were held by the judges of the supreme court in , the intermissions of that tribunal, each judge sitting in his circuit, usually together with the judge of the district court for the district in which the circuit court was held. From this it resulted that the determinations of the circuit coui-ts were generally made by the concurrence of one member of the supreme court, which tribunal has an appellate jurisdiction over the deci- sions of all the circuits. The act of congress of April 10, 1869 (Rev. Stat. § 607); modified this system. This en- actment provides that for each circuit there shall be appointed a circuit judge,- who shall have the same power and jurisdiction therein as the justice of the supreme court allotted to the circuit. But the system of allotting the justices of the supreme court among the circuits is continued, and the authority and duty of each of those Justices to attend at least one term of the circuit court in each district of his circuit, during, eveiy period of two years, is expressly declared. Rev. Stat. § 710. Thus this statute, while increasing the judicial force of the circuit courts, preserves the same gen- eral connection between these courts and the supreme court. The district judge of each district, usually, or often, BJts with the circuit judge or the judge of the supreme court, in holding the circuit court within his district; but, in, case of a difference between them, the opinion of the circuit judge prevaOs (except to authorize imprisonment or punishment), unless either party to the controversy obtains, as he may, the opinion of the supreme court upon the point, by causing the question on which the judges are opposed to be certified to that court for determination. The circuit courts are not created by the constitution, but by congress; and their jurisdiction is such as congress confers from time to time. A general description of the original jurisdiction under existing laws is, that it extends (subject, to some limitations founded on residence) to civil suits involving more than $500, and arising under the con- stitution, laws, or treaties of the United States, or in which the United States are plaintiffs, or in which the contro- versy is between citizens of difierent states, or citizens of the same state claiming lands under grants of different, states, or between citizens of a state and foreign states, citizens, and sub- jects; also of crimes under the laws of the United States. They have also an, appellate jurisdiction over the district courts. The jurisdiction of the circuit courts was the subject of numerous enactments, from the judiciary act of 1789, down to the revision of the statutes, in 1873; the substance of which was set forth in sections 629 and 630 of the revision. By act of March 3, 1875, § 1 (18 Stat, at L. 470), a new definition was given of the jurisdiction, which is certainly very comprehensive, and has been held by some of the cases (see Osgood v. Chi- cago, &c. R. R. Co., 6 Biss. 330) to be a substitute for and implied repeal of the provisions of the revision on the subject, and from which the above sketch , is . condensed. , Circuitus est evitandus. Circuity is to be avoided ; the courts seek to avoid circuity in legal proceedings. Upon this principle, set-ofi of cross- demands is allowed, thus disposing in one action of what might become the subject of two or more suits. Upon CIRCUITY 223 CITIZEN the same ground, counter-claims are by statute permitted to be set up in de- fence, even such as were not strictly proper to be set off., So, where two par- ties have judgments against each other, they will be ordered to be set off, for the purpose of avoiding circuity, vexar tion, and expense. CIRCUITY OF ACTION. A more complex course of proceeding to recover a demand than is needful ; a round- about mode of suing. If A has a right of action against B, under circumstances such that B, if he were compelled to pay, could immediately sue C to be reim- bursed, A is allowed, in some cases, to sue C directly, in order to avoid circuity of action. CIRCUMSTANTIAL KVIDENCE. This phrase describes that mode of proving an allegation which consists in proving circumstances which would naturally attend the fact alleged, and from them arguing its existence ; or, in reasoning from facts which are known or proved, to establish such as are al- leged to exist. It is opposed to direct or positive evidence, which consists in testimony or documents substantiating the matter alleged by word of persons actually cognizant of it. When the existence of any fact is at- tested by witnesses, as having come under the cognizance of their senses, or is stated in documents, the genuineness and veracity of which there seems no reason to question, the evidence of that fact is said to be direct or positive. When, on the contrary, the existence of the principal fact is only in- ferred from one or more circumstances which have been established directly, the evidence is said to be circumstantial. And when the existence of the principal fact does not follow from the evidentiary facts as a necessary consequence of the law of nature, but is deduced from them by a pro- cess or probable reasoning, the evidence and proof are said to be presumptive. Best on Presumptions, 246 ; Id, 12. CITE. To call or summon. There- fore, 1, to notify a party of a proceeding against him, or call him to appear and defend; and, 2, to qjiote or refer to au- thorities in support of a proposition in juiisprudenoe. Citation : a species of summons or notice to a party to appear and answer a proceeding; also, the act of quoting authorities, and sometimes an authority quoted. Citation, in the sense of a summons, is particularly used in the practice upon writs of error from the United States supreme court, and in the proceedings of courts of probate or surrogates' juris- diction, in many of the states. CITIZEN. A person who owes alle- giance to, and may claim reciprocal pro- tection from, a government ; one who is a member of a nation, or of. the body politic of a sovereign state. Citizenship : the status of a member of the state or nation; the relation of allegiance and protection between individuaJs and their country. The terms appear dravm from the political condition in ancient times, when the city was the leading type of governmental organization ; when the free inhabitant or corporate member of a powerful and wealthy municipality enjoyed a status at home to which power, influence, and privilege were attached; and received, when travelling abroad, a protection and respect, which were accorded to him in view of his membership in the city of his birth or acquired residence, and were propor- tioned tO; the rank and power of that city among the cities of the world.. Citizen was the natural expression in which to couch one's claim of immu- nity or favor abroad, or of authority or privilege at home, when it was founded upon membership in a city. Hence also come some secondary uses of the term; for in the vernacular it has been used as meaning resident of a city, in contrast with countryman; and so it is not deemed amiss to say, with refer- ence to quelling a riot, that the military fired upon the citizens, meaning upon civilians, persons who were not sol- diers. In American constitutional jurispru- dence, however, the use of the two words is frequent and peculiar. The defini- tions given above are submitted as stating the inherent meanings of the terms, the original and necessary no- tions which they involve, though they have been used in so many different connections, and for purposes so various, that they have acquired associations and collateral significations which are incon- sistent and perplexing. Several ideas CITIZEN 224 CITIZEN are often associated with them, which ought to be discriminated. 1. Descent or inheritance is not an element in these terms. Birth, indeed, is the prime avenue to the status ; but this is not upon an^view that it is a rank or degree which the child inherits from the father. If the child is born a citizen, that condition originates from the circumstances attending his birth; it is not derived by descent, but arises from the principle, fundamental to na- tional government, that the people born within a country are the primary mem- bers of the body politic, and constitute the natural members of the nation. 10 Op. Alt.-Gen. 382. Apparent ex- ceptions, as where the citizenship of a father is imputed to a child born abroad, are not real ones ; the status is not acquired upon any theory of descent (although the act of 1855 does use, in- advertently, we think, the word descent in this connection) : it is impressed upon the child directly, by the law, in view of political considerations which incline government to recognize citizenship, notwithstanding foreign birth, and without prescribing such conditions as are imposed on naturalization. Just as government does give citizenship to those who will apply for it under natu- ralization laws, it might give it to all who remove within its territory, and no idea of descent would arise in either case; and so the gift does not involve that idea in the cases of children of American parentage but of foreign birth. 2. Age, or majority, is not involved. The most important political rights are not, indeed, acquired, until the age of twenty-one ; but it is not the possession of these which constitutes citizenship, nor is citizenship in abeyance, , while they are. The child is, from his birth at least (whether also during the months of his recognized legal existence before birth is a minute question upon which we have not space to enter), a citizen, invested with the relation of allegiance and protection, though postponed, dur- ing minority, from exercise of powers which the law reserves for adults. 3. Sex, again, does not enter into these terms. Women are citizens as fully and truly as men. If the condi- tions on which citizenship is acquired by foreign-bom women are, in some cases of detail, different from those which apply to men, this makes no difference in the meaning of the term when it applies to them ; nor does a recognition of woman's citizenship involve a grant of political rights, such as are, indeed, usually con- ferred only upon citizens, but do not in- here in that status. See United States I). Anthony, 11 Blatchf. 200; Minor v. Happersett, 21 Wall. 162; United States V. Reese, 92 Id. 214; Spencer v. Board of Registration, 1 McArthur, 169. 4. Race, again, seems not an element. The course of decisions prior to the abo- lition of slavery did discern in negro parentage, independent of enslavement, a disqualification from citizenship, Dred Scott V. Sandford, 19 How. 393; State V. Ambrose, 1 Meigs, 331; 1 Op. Att.- Gen. 506 ; Marshall v. Donovan, 10 Bush, 681 ; but this position was nearly aban- doned before the fourteenth amendment to the constitution, and is wholly unten- able since. The decisions adverse to the citizenship of Indians (McKay v. Campbell, 6 Am. L. T. Rep. 407; Kawa- hoo V. Adams, 1 Dill. 344; 7 Op. Alt.- Gen. 746) appear founded on the pecu- liarities of the tribal condition, and to rest upon the fact that children born to members of Indian tribes, though born within territory over which the United States government holds sway, are not born within the allegiance of the United States ; or (to accommodate the phrase- ology to the language of the fourteenth amendment), though born within the United States, they are not born subject to the jurisdiction thereof. We do not find any explicit authority that a child born, within the settled regions of the United States, to Indian parents who have previously abandoned the tribal re- lation, and are dwelling under and as ordinary subjects of the government, may not, since the amendment, claim the status of a native-born citizen. 5. Right to co-operate in government is not a constituent. The right to vote, indeed, is not generally conferred upon persons who are not citizens ; upon the other hand, it is not extended to all who are. It may be, and is, restricted by CITIZEN 225 CITIZEN many conditions founded on age and sex, on length of residence in a state or district, on compliance with registrar tion laws, and others, which are wholly aside from citizenship. Eligibility to oflSce is not in any respect a test ; many offices are not open to all citizens, but qualifications of age, local residence, and sometimes of special learning, are super- added; and many offices may be held by those who are not citizens. See Van Valkenburg v. Brown, 43 Cal. 43; 10 Op. Att.-Gen. 382, 887; and, contra. White V. Clements, 89 Ga. 282; Amy V. Smith, 1 Liu. 326. 6. Rights of property are not involved. From the earliest times, in England, indeed, alienage, if unrelieved by stat- ute, has involved the disabilityto inherit or hold lands; and this doctrine has prevailed in the states, in virtue of their general adherence to the common law. But legislative interference to relieve the disability has not been uncommon, and has been exercised, both by special acts and general laws, without the idea that citizenship was thereby given. Acts enabling aliens to hold lands do not in- volve citizenship. And the doctrine, when accurately stated, is a doctrine of disability of aliens ; not of a privilege or capacity of citizens. These negative explanations will some- what exhibit the true sense of the terms in question. They present simply and purely the idea of a relation between an individual and a government, constituted either by birth under conditions defined by law, or by naturalization, and involv- ing the right of government to claim allegiance and political support from the individual, and the right of the individ- ual to receive governmental prgtection from the sovereign power. This protec- tion, be it added, is not limited to the protection of the person and property, which the municipal law endeavors to secure to all dwellers in the territory, but national pi-otection, recognition of the individual, in the face of foreign na- tions, as a member of the state, and assertion of his security and rights abroad as well as at home. Another aspect is not less important: that which regards the rules for deter- mining what persons are citizens. In one sense, the answer to this question constitutes a definition of citizen. Prom- inent among the authorities on this point is the fourteenth amendment to the national constitution, declaring 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 re- side." This appears, at first sight, as if it were intended as an exhaustive deline- ation of the persons who are citizens, so that no person not included in the de- scription can be deemed to be one. And this effect has sometimes been imputed to it. We think, however, it ought not to be so understood. The language does not imply this. All persons born, &c., are citizens : this does not logically im- port that there may not be other persons who are also citizens. The purposes of the amendment do not indicate an inten- tion to limit the term or exclude any class of persons. The results of the war had developed a general desire to protect, by national authority, the newly emanci- pated negroes in some just and uniform measure of civil rights. The thirteenth amendment had secured their liberty ; but its effect was impaired in several of the former slave states by enactments restrict- ing the rights and capacities of negroes on the mere ground of their race ; and it was to meet a wide-spread evil of this nature that the fourteenth amendment was agitated and adopted. That provi- sion sought to enlarge the class of citi- zens; to make citizenship distinctly national, and bring it under the protec- tion of national law; to establish that negro parentage should be no bar to the citizenship of a person of American birth. Van Valkenburg v. Brown, 43 Cal. 43; see also McKay v. Campbell, 5 Am. L. T. Rep. 407, 414. There had long been rules and statutes which accorded citizenship to some persons not born within the United States, and not naturalized ; but to abrogate these was no part of the national purpose in the amendment; nor was the attention of the people drawn to them as an abuse to be abolished. Again, the subsequent legislation of congress is not consistent with the idea that the amendment is a definition of who are citizens. Since its 15 CITIZEN 226 CITIZEN adoption, congress has re-enacted (Rev. Stat. §§ 1992, 1995) provisions of former laws asserting citizenship ; and these, so far as they are broader than the amend- ment, should be taken into view as still operative. The important provisions are, that all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed (act of April 9, 1866) ; aU children heretofore born , or hereafter born, out of the United States, whose fathers were, or may be at the time of their birth, citizens thereof, except children of fathers who never re- sided in the United States (acts of April 14, 1802, and Feb. 10, 1855) ; and any woman married to a citizen (act of Feb. 10, 1855) , — are declared citizens. These persons must be, we think, still included in the term. Nor do we find any reason to consider that any rule of common law which may have been before the amend- ment operative as establishing citizen- ship without the condition of native birth is abrogated by that enactment. There is a distinction between citizens under the state and under the national governments. The American people have or'ganized a dual government, — a government of independent states for domestic affairs, a government of the Union for national concerns; and the idea of citizenship under these two gov- ernments is as distinct as are the govern- ments themselves. United S^a-tes v. Cruikshank, 92 U. S. 542. There may well be a citizen of the United States who is not a citizen of any state. In- habitants of the District of Columbia, or of the territories, and some cases of persons born abroad, but within the allegiance of the federal government, may be particularized. The fourteenth amendment seems not to abolish this distinction : it declares that persons shall be citizens of the state where they reside ; but if one has no legal residence in any state, this clause can have no operation ; yet his citizenship of the United States must be deemed unaffected. It is not so easy to state any case of a person who would be deemed a citizen of a state, yet not of the Union. But if citizenship can, since the fourteenth amendment, be forfeited, as unquestion- ably it might be before, if a loss of citizenship may be imposed by statute as a penalty for an offence (Gotcheus v. Matheson, 58 Barb. 152; 40 How. Pr. 97; Rev. Stat. § 1996), it would seem that, under possible legislation, a person con- victed under an act of congress imposing disfranchisement might cease to be a citizen of the Union; yet, because the offence was against the United States alone, or because there was no corre- sponding penal law in his state, he might be deemed to continue a citizen of the state. These suggestions explain that the two citizenships are distinct; in nature, though, generally and presum- ably, they are united in each individual. The apparent recognition of corpora- tions as being citizens within the constitu- tional grant, which extends the judicial power to controversies between citizens of different states, deserves a mention. A corporation is not within the term citi- zen, in its ordinary acceptation; yet a suit to which a corporation is a parl^has been brought, by repeated and settled decisions, within this clause; and this has given rise to loose expressions in the books, to the effect that a corporation is a citizen within the constitutional clause. Yet we do not understand that the cases deliberately take this ground. The doctrine, when carefully examined, is, that an action in which the corpora- tion appears by its corporate name is to be regarded as brought by or against citizens of the state which created it. Where a corporation is created by the laws of a state, the legal presumption is that its members are citizens of the state in which alone the corporate body has a legal existence ; and hence a suit by or against a corporation, in its corporate name, must be presumed to be a suit by or against citizens of the state which created the corporate body; and no aver- ment or evidence to the contrary is ad- missible for the purpose of withdrawing the suit from the jurisdiction of the United States. Ohio, &c. R. R. Co. t. Wheeler, 1 Black, 296. The suit in the corporate name is, in the contemplation of the law, the suit of the individuals who by legal presumption are considered as composing it ; that is to say, the suit of citizens of the state by whose law it is created. Earlier decisions went upon CITIZEN 227 CITIZEN the ground of looking to the actual citi- zenship of members of the corporation; but the later cases have overruled that doctrine, and established the jurisdiction, on the ground of a conclusive presump- tion. But the point is, not that corpo- rations are citizens, but that when a corporation is plaintiff or defendant in a suit, the controversy — this is the con- trolling word in the constitution — is with its members; and these are pre- sumed to be citizens of the state of its creation. Mullera. Dows, 94 U. S. 444. Citizen and inhabitant are not synony- mous. One may be a citizen of a state without being an inhabitant, or an inhabit- ant without being a citizen. Quimby v. Duncan, 4 Harr. {Del.) 383. Citizens, in Ind. Const, art. 1, § 23, — de- claring that privileges which shall not equally belong to all citizens shall not be granted, — includes only white male citizens of the United States, of the age of twenty- one years, and white males of foreign birth, of the like age, who have declared their in- tention, under the act of congress, to become citizens of the United States, and have re- sided in this state six months. Thomason V. State, 16 Ind. 449. Citizen, as used in the homestead law, means a resident of a town or county, and carries no implication of political or civil privileges. McKenzie v. Murphy, 24 Ark. 155. Citizen is sometimes used as synonymous with resident ; as in a statute authorizing funds to be distributed among the religious societies of a township, proportionably to the number of their members who are citi- zens of the township. State v. Trustees of Section 29, 11 Ohio, 24. Tlie Texas act, exempting certain prop- erty of every citizen from execution, is not confined to native-born and naturalized citizens, but extends to all inhabitants of the state, married or single. Cobbs v. Cole- man, 14 Tex. 594. In my opinion, the constitution uses the word citizen only to express the political quality of the individual in his relations to the nation ; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on one side, and protection on the other. And I have no knowledge of any other kind of political citizenship, higher or lower, statal or national, or of any other sense in which the word has been used in the constitution, or can be used properly in the laws of the United States. The phrase "a citizen of the United States," without addition or qualification, means neither more nor less than a member of the nation. Opin. of Atty.-Gen. Bates, on Citizenship, 10 Op. Att.-Gen. 382, 888. Every person born in the country is, at the moment of birth, prima fade a citizen ; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the " natural-born " right, as recognized by the constitution in terms the moat simple and comprehensive, and without any refer- ence to race or color, or any other accidental circumstance. That nativity furnishes the rule, both of duty and of right, as between the individual and the government, is a historical and a political truth, universally accepted. So strongly was congress im- pressed with the fact that the child takes its political status in the nation where it is born, that it was found necessary to pass a law to prevent the alienage of children of our known fellow-citizens who happen to be born in foreign countries ; viz., the act of Feb. 10, 1855 (10 Stat, at L. 604). lb., 394, 396. The word- citizens is not used of the sub- jects of a monarchical government. The term involves an idea not enjoyed by sub- jects, — the inherent right to partake in the government. The republics of the old world were cities, and citizens anciently signlSed inhabitants of cities. The people of modern republics were, in course of time, called citi- zens, for the simple and obvious reason that their relation to the state was like the rela- tion of citizens to the city; they were a part of its sovereignty; were entitled to its privileges, its rights, immunities, and franchises. In its ancient use, relating to municipal corporations, citizen meant strictly one who possessed inalienably all the rights, civil, political, and reUgious, en- joyed by any one in the city ; for the city itself, being only a corporation, could not by its by-laws infringe or quaUfy those rights, since they were given by the charter. When, however, the word came to be used of the people of a state, who were them- selves the sovereign, this inalienable equal- ity in the rights of citizens ceased ; for the people themselves, being bound by no char- ter, may, by aifirmative enactment, qualify, restrain, and restrict the rights of citizens. The word citizen, then, means, presump- tively, a person in the enjoyment of all political rights ; but it does not so neces- sarily import this, that the employment of it in a constitutional description debars the legislature from restricting the political rights of any of the persons embraced by the description. White v. Clements, 39 Ga. 232, 260 ; see also Amy v. Smith, 1 Litt. 326 ; Thomasson v. State, 15 Ind. 449. Domicile in a foreign country does not affect the fact of citizenship, nor work a forfeitm-e of political rights. When the territory and government of a kingdom pass to and become merged in the territory and government of another nation, all of its subjects pass also. The tie which binds them is not bodily presence, but allegiance. Brown v. United States, 5 Ci. of CI. 671. Inasmuch as the Indian tribes within the territory of the United States are indepen- dent political GommxmitieB, a child bom in CITIZEN 228 CITIZEN" one of such tribes is not a citizen of the United States, although born within its territories. McKay v. Campbell, 5 Am. L. T. Rep. 407 ; Kawahoo v. Adams, 1 DiU. 344. He is not a citizen, but a domestic sub- ject. Opin. of Atty.-Gen. Gushing, on Ee- lation of Indians, 7 Op. AU.-Gen. 746. The words " citizens " and " people of the United States " are synonymous terms. But a free negro of the African race, whose an- cestors were brought to this country and sold as slaves, is not a citizen within the original meaning of the constitution of the United States. Dred Scott v. Sandford, 19 How. 393. Persons, although of African descent, bom free within the jurisdiction and allegiance of the United States, are citizens of the United States. They may, indeed, not be privileged to vote or hold office, by the laws of the states where they reside ; but these privileges are not essential to the character of a citizen. Allegiance on the part of the individual, and the duty of protection on the part of the government, constitute citizenship under the constitution. Smith V. Moody, 26 Ind. 299. All persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law. There are two exceptions, and only two, to the uni- versality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent ; and slaves, in legal contempla- tion, are property, and not persons. The common law has made no distinction on account of race or color. Free persons of color, born within the allegiance of the United States are citizens, and have al- ways been entitled to be so regarded. United States v. Rhodes, 1 Abb. U. S. 28, 40; 1 Am. L. T. U. S. Cts. 22. Free men of color born within the United States are citizens of the United States, and are not disqualified, by negro blood, from becoming masters of vessels engaged in the coasting trade, although the acts of congress confine that privilege to citizens. Opin. of Atty.-Gen. Bates, on Citizenship, 10 Op. Att.-Gen. 382 ; and see Opin. of Atty.- Gen. Legare, 4 Op. Att.-Gen. 147. Negroes bom within the United States are, by the amendments to the constitution, citizens. United States v. Canter, 2 Bond, 389. Prior to the adoption of the fourteenth amendment, negroes were not, and could not become, citizens. The primary object of that amendment was to elevate the negro to citizenship, and without affecting the rights of the whites, secured by the then existing constitutions and laws. Marshall V. Donovan, 10 Bush, 681. Citizen has relative applications, which modify its sense in given cases. In its highest political sense, it signifies the per- sons who constitute the political society. It is not confined to persons enjoying the right of suffrage ; and, on the other hand, a person may be an elector without being a citizen. And the mere fact of birth withia the territorial limits of the United States does not constitute one a citizen. Opin. of Atty.-Gen. Gushing, on Belation of Indians, 7 Op. Att.-Gen. 746. American citizenship does not necessarily depend upon nor co-exist with the legal ca- pacity to hold oflice, or the right of suffrage. The several states, in exercising the power to define who may vote or hold office, act independently, and their power is only limited by their own prudence and discre- tion. Hence these faculties of voting and holding office are not uniform in the differ- ent states, but are made to depend on a variety of facts, purely discretionary; such as age, sex, race, color, property, residence. No person in the United States did ever exercise the right of suffrage in virtue of the naked, unassisted fact of citizenship. In every instance the right depends upon some additional fact and cumulative quali- fication. Opin. of Atty.-Gen. Bates, on Citizenship, 10 Op. Att.-Gen. 382, 387. ^Citizensliip does not involve the right to vote and hold office. All the States have withheld suffrage from some classes of citi- zens, and some have granted it to persons who were not citizens. An error on this subject has arisen from confounding politi- cal with civil rights. The latter constitute the citizen, while the former are not neces- sary ingredients. A citizen is one who owes the government allegiance, service, and money by way of taxation, and to whom the government in turn guarantees liberty and personal rights. Van Val- kenburg v. Brown, 43 Cal. 43. Compare Live-Stock, &c. Assoc, v. Crescent City, &c. Co., 1 Abb. V. S. 388. White persons born within the limits and jurisdiction of the United States, or natural- ized, do not owe their citizenship to the recent constitutional amendments. The pur- pose of the fourteenth amendment was chiefly to confer citizenship upon the ne- groes, they having beeir adjudged (19 How. 393) not citizens, though natives and free bom. Van Valkenburg v. Brown, 43 Cal. 43. The meaning of the fourteenth amend- ment, all persons born in the United States and subject to the jurisdiction thereof, is, born belli in the United States and subject to the jurisdiction; born in the United States, and bom subject or not ; born in the United States, and afterwards becoming sub- ject. One born within the territory, but not within the allegiance, is not a citizen, he- cause he is afterwards brought within the jurisdiction. McKay v. Campbell, 5 Am. L. T. Rep. 407. By the common law, a subject travelling abroad on public or private business, with the express or implied license of his sover- eign, is under that sovereign's protection ; and, consequently, both he and his chil- dren born while so travelling owe allegiance CITIZEN 229 CITY to and are citizens of the native country of tlieir fatlier. The length of the father's residence abroad is not material, so that it was, in intention and in fact, temporary, not perpetual. And whether the mother was a citizen or not is unimportant : the status of the child is determined by that of the father. Ludlam v. Ludlam, 31 Barb. 486; Davis b. Hall, 1 Nott f M. 292; Las- portas V. De la Motta, 10 Rich. Eq. 38. An individual whose father appears to have been a resident in this country, and to have married, and had children bom here, is presumed to be a citizen, although he himself was born subsequently to his father's removal to a foreign country, there being nothing else to show his father to have been an alien. Campbell v. Wallace, 12 N. H. 362 ; s. p. Shanks v. Dupont, 3 Pet. -243,. Under the act of April 14, 1802, ch. 288, § 4, the children of persons duly naturalized under any of the laws of thfe United States, being under the age of twenty-one years at the time of their parents being so natural- ized, are, if dwelling within the United States, to be considered as citizens of the United States. Campbell v. Gordon, 6 Cranck, 176. Although a state, by its laws, passed since the adoption of the constitution, may put a foreigner, or any other description of persons, upon a footing with its own citi- zens as to all the rights and privileges en- joyed by them within its dominion and by its laws, that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another state. Dred Scott v. Sandford, 19 Bow. 393. There is in our political system a govern- ment of each of the several states, and a government of the United States. Bach is distinct from the' others, and has citizens of its own, who owe it allegiance, and whose rights, within its iurisdiction, it must pro- tect. The same person may be at the same time a citizen of the United States and a citizen of a state ; but his rights of citizen- ship under one of these governments will be different from those he has under the other. The government of the United States, al- though it is, within the scope of its powers, supreme and beyond the states, can neither grant nor secure to its citizens rights or privileges which are not expressly or by im- plication placed under its jurisdiction. All that caimot be so granted or secured are left to the exclusive protection of the states. United States «. Cruikshank, 92 U. S. (2 Otto) 542. A citizen of the United States owes his first and highest allegiance to the general government, and not to the state of which he may be a citizen. A declaration of war, or the commencement of actual hostilities, between two States, ipso facto dissolves the partnership relation existing between citi- zens of the hostile states. Planters' Bank V. St. John, 1 Woods, 585. Within the acts of congress relating to suits between citizens of different states in the circuit courts, and removal of causes, a man is in general deemed to be a citizen of the state of his domicile. Gassies v. Ballon, 6 Pet. 761; Case v. Clarke, 5 Mas. 70; Fisk V. Chicago, &c. R. R. Co., 53 Barb. 472 ; 3 Abb. Pr. n. s. 453. But one may be a citizen of one state, within the meaning of the act providing for the removal of a cause, and yet be a resi- dent of another state. Darst ;;. Bates, 51 111. 430. Corporations are citizens, within the meaning of the clause of the constitution of the United States which extends the judi- cial power of the courts of the United States to controversies between the citizens of different states; and they are citizens only of the state or sovereignty that cre- ated them. Western Union Telegraph Co. V. Dickinson, 40 Ind. 444. A corporation aggregate is not consid- ered as a citizen, Or entitled to the privileges of a citizen, except, perhaps, for the pur- pose of giving jurisdiction to the federal courts, for which a corporation may be con- sidered a citizen of the state by which it is incorporated. Tatem v. Wright, 23 N. J. L. 429. A corporation is not per se a citizen with- in the meaning of section 3 of the constitu- tion of the United States. Wheeden v. R. R. Co., 2 Phila. 23. An incorporated company is not within the meaning of that clause of the constitu- tion of the United States which secures to the citizens of each state all the privileges and immunities of citizens of the several states. People v. Imlay, 20 Barb. 68 ; Paul V. Virginia, 8 Wall. 168 ; Ducat v. Chicago, 48 m. 172. The term citizens of a state, as used in the constitution, applies only to natural per- sons, members of the body politic, owing allegiance to the state, and not to artificial persons created by the legislature, and pos- sessing only the attributes which the legis- lature has prescribed. Paul v. Virginia, 8 Wall. 168. An incorporated company is not a citizen of the United States, nor is it a person with- in the meaning of section 1 of the fourteenth amendment to the constitution. Ins. Co. v. New Orleans, 1 Woods, 85. CITY. As used throughout the United States, imports a municipal corporation of the larger and more important class, incorporated under an organization a distinguishing peculiarity of which is that the general deliberative assembly, open to aU the citizens, known in towns as town-meeting, is abandoned ; and all direct exercise of powers of govern- ment is confided to ofSoers, — a, mayor, aldermen, and others, — usually elect- ed by popular vote in wards or dis- CIVIL 230 CIVIL tricts, into which the city is territorially divided. City may be construed as including in- corporated towns, where the context favors. Burke v. Monroe Co., 77 lU. 610. An instruction to the jury, in an action for a defective street, tliat different degrees of highway repair were required in a city and in a country place, — sustained, upon the view that the judge did not mean to make a distinction between the corporate duties of cities and townships, but used the word city to designate a thickly settled place, with houses and stores contiguous or near to each other, with a great amount and variety of travel, as contradistinguished from places thinly settled, and houses re- motely scattered, through which there is little amount and variety of travelling. Ktz V. City of Boston, 4 Gush. 366. In Spanish jurisprudence, a city was un- derstood to be a place surrounded by walls. Villars v. Kennedy, 5 La. Ann. 724. CIVIL. Originally, that which per- tains to the citizen (Lat. civis) or free inhabitant of an independent city; in distinction from the government, or from persons of other classes, such as the soldier, or subject of purely military law; the countryman or peasant; the priest or ecclesiastic, &c. The word has a variety of applica- tions; but in almost all one may read- ily trace the idea of the character, privi- leges, or peculiarities of the ancient citizen. Thus it is now used in opposi- tion to that which is military; again, in contrast with barbarous, uncivilized, or rustic; and, in turn, as the opposite of that which is ecclesiastical or priestly; and it may designate that which is for the individual in distinction from the government. But in all these uses it presents the citizen as the standard with which the others are compared. See Citizen. Civil action, case, cause, remedy, suit, or proceeding. These phrases embrace judicial proceedings designed to enforce the rights and redress the wrongs of individuals as between them- selves, in distinction from criminal pro- ceedings, which are instituted to vin- dicate pubUo justice, by infliction of punishment in the name of the sovereign power, and for the protection of the whole people. A civil action is a demand of a civil right by a person in a court of justice. State V. Bottle of Brandy, 43 Vt. 297. The descriptive term " civil actions " embraces cases at law and in equity, and may be fairly construed as used in contra- distinction to criminai causes. Livingston V. Story, 9 Pet. 632, 656. Civil actions (13 Stat, at L. 61), as used in the act of congress enlarging competency of witnesses, includes actions at law, suits in chancery, proceedings in admiralty, and all other judicial controversies in which rights of property are Involved, whether between private parties or such parties and the government. It is used in contra- distinction to prosecutions for crime. United States V. Cigars, 1 Woolw. 123; Bison v. Cribbs, 1 Dm. 181. Habeas carpus is not a civil action within the meaning of an act authorizing a change of venue of any civil action. Gamer v. Gordon, 41 Ind. 92. Civil action, in a statute allowing costs, does not include arbitrations. Bond v. Fay, 1 Allen, 211. Civil action includes a petition impeach- ing a decree for fraud practised by the suc- cessful party. Coates v. ChiUicothe Branch of State Bank, 28 Ohio St. 415. Civil cases are essentially those in which the defendant, or party against whom relief is sought, is a natural person or corporation other than the state. State t. Judge, &c., 15 La. 192. Civil cases are those which involve dis- putes or contests between man and man, and which only terminate in the adjustment of the rights of plaintiffs and defendants. They include all cases which cannot legally be denominated criminal cases. Grimball V. Boss, T. V. P. Charlt. 175. The constitutional provision, that " in all civil cases the right of trial by jury shall re- main inviolate," does not mean that every case which is not a criminal, is a civil one. The phrasB civil case had a definition, a meaning, at common law, when the early constitutions of this country y^ere formed ; and was used in those constitutions in the coramon-law sense, but does not embrace all legal proceedings, except criminal ; nor does the provision render chancery causes, assessment of damages in the laying out of highways, by jury, nor contests of elec- tions, triable by jury. But proceedings for the assessment of damages to real estate taken for public works may legitimately be ranked as civil, and hence held to be within the constitutional provision. Lake Erie, &c. R. B. Co. v. Heath, 9 Ind. 558 ; see also Norristown, &c. Turnp. Co. v. Burket, 26 Id. 53. A statute, giving jurisdiction "in all civil cases, both in law and in equity," covers cases for divorce. Ellis v. Hatfield, 20 Ind. 101 ; Herron v. Herron, 16 Id. 126; Ewing V. Ewing, 24 Id. 468. An action of trespass qu. d. Jr. is in- cluded in a constitutional provision that " all civil cases shall be tried in the county where the defendant resides." Osmond ». Elournoy, 34 «a. 509. That the term civil causes does not in- CIVIL 231 CIVIL elude equity cases, see Gilbert v. Thomas, 3 Ga. 675. Nor a proceeding in bastardy. See Mann V. People, 35 lU. 467 ; Maloney v. People, 38 Id. 62 ; Allison v. People, 45 Id. 87 ; Walker V. State, 6 Black/. 1 ; Sweet v. Sherman, 21 Vt. 23. A prosecution under the Massachusetts bastardy act, though criminal in form, is, in substance, a civil proceeding. Wilbur v. Crane, 13 Pick. 284. It partakes of the nature of both civil and criminal suits. Hill v. Wells, 6 Pick. 104. It is a quasi civil proceeding. Chapel v. White, 3 Cush. 577. It is not a criminal one. Young v. Make- peace, 103 Mass. 50. Where separate terms of court are estab- lished for civil and criminal business, a prosecution for the maintenance of bastard children belongs properly to .the latter. Hyde v. Chapin, 2 Cush. 77 ; S. p. Cum- mings V. Hodgson, 13 Mete. 246. The original proceedings in a bastardy case are properly had before a civil magis- trate. Hawes v. Gustin, 2 Allen, 402. Civil suits relate to and affect, as to the parties against whom they are brought, only individual rights which are within their individual control, and which they may part with at their pleasure. The de- sign of such suits is the enforcement of merely private obligations and duties. Criminal prosecutions, on the other hand, involve public wrongs, or a breach and vio- lation of public rights and duties, which affect the whole community, considered as such in its social and aggregate capacity. The end they have in view is the preven- tion of similar offences, not atonement or expiation for crime committed. Caucemi V. People, 18 N. Y. 128. The true test whether a prosecution under the internal revenue law is civil or criminal is whether the judgment is one of punishment against the person, or of for- feiture against the res. United States v. Three Tons of Coal, 6 Biss. 379. Civil commotion. An extended and serious disturbance, with violence, among the masses of ' the people, not amounting to war or even to armed rebellion; not involving the soldiery as an active party, but only the civilians. An insurrection of the people for general purposes, though it may not amount to rebellion, where there is an usurped power. Per Lord Mansfield, cited 2 Marsh. Ins. 793. Civil corporation,, is a term used in former years, in England, to designate corporations not characteristically elee- mosynary or charitable ; corporations organized to promote or care for the interests and affairs of members ; chiefly business and municipal corporations. Civil death. The legal privation or extinction of a person's rights and ca- pacities among his fellow-members of society. It was the legal consequence of becoming a monk, abjuring the realm, outlawry, banishment, &c., and is now, in some of the states at least, recognized as the result of a sentence to imprisonment for life. Civil injury. An injury regarded in the aspect of its effects upon the indi- vidual sufferer only, and as giving him a personal right to damages or other redress, is called a civil injury, in dis- tinction from a public offence. The same act may involve a civil injury and an offence. Civil law. Primarily, that body of law which a community has established for the regulation of the affairs of its ordinary subjects, as distinguished from the law of nations, the law-merchant, the military law, &o. But, because while the nomenclature of this subject was becoming settled in England, the Roman civil law was prominent among all foreign systems of municipal law, and the indigenous law of England was easily and naturally termed the com- mon law, the phrase the civil law has become attached, par excellence, to the body of the Koman law, comprised in the Code, Pandects, Institutes, and Nov- els of Justinian and his successors, orig- inally named Corpus Juris Civilis, q. v. Thus Ridley, in his View of the Ciuile and Ecclesiastical Law (p. 2), published in 1607, says : " The law Ciuile, being largely taken, is the law that euery partiouler Nation fram- eth to it selfe, as the Athenians laws, and the lawes of Lacedemon, in which sense also, the law of England may be called the Ciuile law, for that it is the proper and priuat law of this Nation : but in more sort, the Ciuile law is the law, which the old Bomans used, and is for the great wis- dom & equitie thereof at this day, as it were, the Common law of all weel gouerned Nations, a very few only excepted." And the Institutes of Justinian contain the declaration : The law which a people enacts is called the civil law of that people, but that law which natural reason appoints for all man- kind is called the law of nations, because all nations use it. Bowyer, Mod. Civ, Low, 19. The civil law, or the law of citizens, is that which the people of a state set up for themselves, and which applies to citizens alone. Amongst all civilized nations, jus CIVIL 232 CIVIL privatum consists of two parts : rights are claimed under the one, both by citizens and strangers ; under the other, by citizens only. This second part is the jus civile. Cumin, Mar. Civ. Law, 33. The word civil, as applied to the laws in force in Louisiana, before the adoption of the civil code, is not used in contradistinction to the word criminal, but must be restricted to the Boman law. It is used in contradis- tinction to the laws of England and those of the respective states. Jeunison v. War- mack, 5 La. 493. Civil liberty. That measure of lib- erty which man may enjoy when he enters into a state of society, or becomes associated with his fellows in institu- tions of government and poKcy; under which conditions some portion of the natural liberty which he might exercise in a wild or savage state must be sur- rendered, in order to the more secure pos- session of the residue. Blackstone de- fines it as the power of doing whatever the laws permit). 1 Bl. Com. 6. Civil list. A list or estimate of the expenses of officers of government; also, sometimes, the officers employed and paid according to an annual, official list. In early times, in England, it was cus- tomary for parliament to make grants to the king of revenues estimated to be sufficient to defray the expenses of the executive government and of the royal household, no marked distinction being made between these heads of expendi- ture ; and, upon any extraordinary mili- tary emergency, a special grant appro- priate to the occasion was made. Through many reigns the civil list em- braced both the support of the royal person and dignity, and the salaries of civil officers, and pensions. By subse- quent legislation it is restricted to the support of the person and dignity of the sovereign, and includes salaries of per- sons attached to the royal household; but the salaries of the general officers of government, and the pensions, are sepa- rately met. The civil list is now under- stood to be the official estimates for an annual sum granted by parliament at the commencement of each reign, for the expense of the royal household and establishment, as distinguished from the general exigencies of the state. Civil officer. This phrase is gen- erally used to distinguish officers charged with the ordinary administration of government over citizens, from officers of the army and navy. In special con- nections it may have a somewhat nar- rower meaning. OfiBces are divided into civil and milita- ry ; and civil offices are political, judicial, or ministerial. Waldo v. Wallace, 12 Ind. 569. Civil officer, in the constitutional pro- vision authorizing impeachment, means officers not military. AU officers who hold their appointments under the national gov- ernment, with the exception of officers in tlie army and navy, are liable to impeachment. A senator or representative is not, because he does not derive his appointment from the United States. Story Const. §§ 791-793. Civil officers, as used in the organic act creating the territory of Wisconsin, em- braces only those officers in whom a portion of the sovereignty is vested, or to whom the enforcement of municipal regulations or the control of the general interests of society is confided; and does not include such officers as canal commissioners. Unit- ed States 0. Hatches, Bum, 22, 1 Finn. 182. Civil responsibility. This designates amenability for any act or omission en- forceable in an action or other proceed- ing at the suit of a private person or corporation, or (in certain cases) at the suit of the sovereign power suing as for a private wrong, and is opposed to crim- inal responsibility, which means liabil- ity to answer in a criminal court. Civil rights. Rights accorded to a person simply as a member of the com- munity or nation. C-I-^jC AoT^xfUi, ^^'^1^ Civil side. When the same court has jurisdiction of both civil and crimi- nal matters, proceedings of the first class are often said to be on the civil side; those of the second, on the criminal side. The phrase apparently originates from an allotment of distinct rooms on opposite sides of a building or hall to the two kinds of business respectively. In the county hall, or court in which the trials (in the English assizes) take place, it is very usual for one side or portion of the building to be appropriated to the hear- ing of cases of civil character, and the other side or portion to the hearing of those of criminal nature. And hence the phrase has become common, that the judge is either sitting " on the civil side " or " on the crimi- nal side," meaning thereby that be is either presiding at nisi prius, or trying a pris- oner, as the case may be. Brown. Civil war. A war prosecuted be- CIVILIAN 233 CLEAK tween opposing masses of citizens of the same country or nation. Before the declaration of independence, the war between Great Britain and the United Colonies was a civil war; but in- stantly on that event the war changed its nature, and became a public war between independent governments. Ware v. Hylton, 3 Dall. 199, 224. A civil war is a war between one portion of the citizens of a state with another por- tion, as was the case in the war begun in England in 1642, and during the continu- ance of which Charles I. was beheaded. The war existing in this country from April, 1861, to April, 1865, was not a civil war, but a war between states. Mayer v. Beed, 37 Ga. 482. That it was a civil war, after the presi- dent's proclamation of Aug. 16, 1861, see Prize Cases, 2 Black, 635, as explained 35 Ind. 134 ; Perkins v. Rogers, 35 Ind. 125. CIVILIAN. A practitioner, or writer in or teacher or student of the civil law; also, a person not a member of the army or navy, or, in England, of the church. CIVILITER. CiviUy. This term is used in distinction or opposition to the VFord criminaliter, — criminally, — to dis- tinguish civil actions from criminal prosecutions. Thus it is said that one having suffered an injury may proceed either cioiliter or criminaliter. Civiliter mortuus. Civilly dead ; dead in the view of the law. The condition of one who has lost his civil rights and capacities, and is accounted dead in law. See Civil Death. CLAIM, V. To assert one's alleged right; to demand the possession or en- joyment of something rightfully one's own, and wrongfully withheld. Claim- ant: one who makes such a demand. Claim, n. : an assertion of one's right or demand to possess or enjoy something as one's own. Claim is a challenge of interest in any thing that is in the possession of another, or, at least, out of a man's own possession. It is either verbal, where one doth by words claim and challenge the thing that is so out of his possession; or by an action brought. Sometimes it relates to lands, and sometimes to goods and chattels. Jacob. A claim is a right or title, actual or sup- posed, to a debt, privilege, or other thing in the possession of another ; not the posses- sion, but the means by or through which the claimant obtains the possession or en- joyment. Lawrence v. Miller, 2 N. Y. 245, 254. It is a challenge, by a man, of the prop- erty or ownership of a thing, which he has not in possession, but which is wron^uUy detained from him. Jackson v. Losee, 4 Sandf. Ch. 381 ; Kneedler v. Stembergh, 10 How. Pr. 67, 72. In its ordinary sense, claim imports the assertion, demand, or challenge of some- thing as a right ; or it means the thing thus demanded or challenged. In a constitu- tional provision restricting, in general terms, the payment of public money " on any claim," it should be understood as including all demands for money against the state, on whatever grounds founded ; whether of a legal or equitable character, whether they arise under existing laws, or originate in circumstances supposed to cast upon the state a duty, even of imperfect obligation only, to make payment. Fordyce v. God- man, 13 Ohio St. 1, 14. The word claim, standing by itself, and unrestricted by the use of other language, would embrace a claim for bounty land, as well as a claim for monej". United States V. Wilcox, 4 Blatchf. 385. In the California statute regulating the settlement of the estates of deceased per- sons, the words " claimant " and " claim " are used as synonymous with " creditor " and " legal demand for money," to be paid out of the estate. Gray v. Palmer, 9 Col. 616. A covenant against claims must be un- derstood only of la;wful claims, unless wrongful claims are expressly included. PoUiard v. Wallace, 2 Johns. 395. It does not extend to tortious acts. Lud- dington v. Pulver, 6 Wend. 404. Nor to a claim which has been sued to judgment, but which the covenantee has not yet been compelled to pay. Aberdeen V. Blackmar, 6 Hill, 324. Claims, in a statute authorizing submis- sion of certain claims to arbitration, was held to mean the allegation upon which issue is taken ; the fact or matter put in issue to be tried, and which must be determined be- fore an award can be made. Olcott v. Wood, 14 N. Y. 32. The phrase, the plaintiff claims, means that he seeks to recover ; that he demands. Douglas V. Beasley, 40 Ala. 142. Claimant is in some cases restricted to mean one who has filed a claim as the law requires. Adams v. Warrill, 46 Ga. 295. CLAUSUM. That which is close or closed; also, a piece of land enclosed. Little used, except in the name of one of the forms of the action of trespass, — trespass quare clausum /regit, because he broke the close. CLEAR. In a devise of money for the purchase of an annuity, means free from taxes. Hodgworth v. Crawley, 2 Atk. 376. In the phrase clear yearly value, clear means free from all outgoings like a rent- charge, as losses by tenants and manage- ment, to which a rent^charge is not liable. Tyrconnel v. Ancaster, 2 Ves. 499. CLEARANCE 234 CLIENT To clear, when used with reference to la,nds, means, in tlie absence of any words of limitation, taking off all timber of every size, but does not include taking out the stumps. Harper v. Pound, 10 Ind. 32. To clear out a highway, means to clear it so far as the uses of a highway require. The public have the right to remove ob- structions to their easement ; beyond this, the rights of the land-owner must be left unimpaired. Winter v. Peterson, 24 N. J. L. 624. CLEARANCE. A document given by the collector of customs to the mas- ter of a vessel about to sail, in the na- ture of a certificate that the vessel has complied with the laws governing expor- tations, and is entitled, and at liberty, to depart on her voyage. It is the for- mal permission of the custom-house au- thorities, to a vessel, to sail. CLEARING. 1. The departure of a vessel from port, considered with ref- erence to the customs and health laws and like local regulations. 2. A method adopted among bankers for a common exchange of drafts held by each house against the others, and settlement of differences; designed to relieve the labor involved in each house sending to all the others to make pre- sentment of the paper it may hold. The general nature of the system is that clerks from the several banking houses in the association, generally all the rec- ognized banks of the city, attend at a fixed hour towards the close of each business day, each bringing with him all drafts which his house has received during the day, payable by any other house: These are then exchanged and balances struck; and each house pays or receives only, the balance shown due, instead of having to pay aU checks upon it and take payment of all it holds. Clearing-house. An office organized by the banks of a city, where their rep- resentatives may meet daily, adjust balances of accounts, and receive and pay differences. CLERGY. 1. Persons in holy orders; ecclesiastics. 2. An abbreviated form of the phrase benefit of clergy, q. v. Clergyable: ap- plies to a felony to which benefit of clergy was accorded. The word clergy comprehends all per- sons in holy orders and in ecclesiastical offices; viz., archbishops, bishops, deans and chapters ; archdeacons, rural deans, parsons (who are either rectors or vicars), and curates ; to which may be added parish clerks, who formerly frequently were, and yet sometimes are, in orders. Jacob. CLERICAL. 1. That which pertains to the clergy. 2. That which pertains to the office or duty of a clerk in the modem sense. See Clekk. Clerical error. A mistake, omission, &o., in a manuscript, such as is attribu- table to the carelessness or miswriting of the scrivener by whom it was drafted, rather than to negligence of the parties ; a failure in reducing the intent to writ- ing, which does not affect or impair the intent itself. Clerical tonsure. A shaving of the head, formerly peculiar to ecclesiastics. CLERK. Originally, a learned man, or man of letters ; whence the term was appropriated to churchmen, who were called clerks, and afterwards clergymen. In modern usage, the word means a writer; one who is employed in the use of the pen, in an office, public or private, either for keeping accounts or entering minutes ; a secretary. A clerk is gene- rally an officer subordinate to a higher officer, board, corporation, or private in- dividual. Clerk is the law term for a clergyman, and by it all of them who have not taken a degree are designated in deeds, &c. In another sense, it denotes a person who practises his pen in any court, or otherwise ; of which clerks there are various kinds, in several offices, &c. The clergy, in the early ages, as they engrossed almost every other branch of learning, so were they peculiarly remarkable for their proficiency in the study of the law. The judges, therefore, were usually created out of the sacred order; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day. {1 Bl. Com. 17.) Jacob. A man about a factory, who attends to sales no farther than the mere delivery of the goods, and noting the fact on a slate, from which the manufacturer transcribes them in his books, is not a clerk within the rule ; and the employer's books are admis- sible, upon proof that he kept honest and fair books. Sickles v. Mather, 20 Wend. 72. CLIENT. The person who employs an attorney, barrister, counsellor, proc- tor, solicitor, or other member of the legal profession. It is sometimes used CLOSE 235 COAST with reference to persona in other voca- tions. CLOSE. The noun close, in its legal sense, imports a portion of land enclosed, but not necessarily enclosed by actual or , visible barriers. The invisible, ideal boundaiy, founded on limit of title, which surrounds every man's land, con- stitutes it his close, irrespective of walls, fences, ditches, or the like. The verb to close is used substantially in its vernacular senses, to shut up; to bound or enclose ; to terminate or com- plete. A plea In an action of trespass, setting up a right to impound the cattle mentioned in the declaration, because they were found doing damage in the defendant's close, is insufficient, under Vt. Gen. Stat. 617, § 4 ; for tliat act only gives such right when beasts are found in an enclosure, which means occupied land, while close is of broader signification. Porter v. Aldricli, 39 Vt. 326. A statute that all saloons for the sale of liquor shall be closed on Sunday, means that sales of liquor shall be entirely stopped, and the traffic shut off effectually, so that drinking, and the conveniences for drinking, sliall be no longer accessible. Kurtz V. People, 33 Mich. 279. A broker employed " to close a bargain " for the sale of real property is not author- ized to sign the name of his principal to a contract of sale. Coleman v. Garrigues, 18 Barb. 60 ; and see Eoach v. Coe, 1 E. D. Smith, 175. Close rolls ; Close -writs. Certain let- ters of the king, sealed with his great seal, and directed to particular persons and for particular purposes, not being proper for public inspection, are closed up and sealed on the outside, and are thence called writs close {literiE clauses), and are recorded in the close rolls in the same manner as others are in the patent rolls (litercc patentes), or open letters. CLOUD ON TITLE. This expres- sion, chiefly used in equity jurispru- dence, designates some instrument or proceeding, some deed, mortgage, judg- ment, decree, assessment, tax, or the like, which, apparently, and upon its face, assuming it to be valid, impairs the title of a party to real property, but which, upon extrinsic facts, is void, and ought equitably to be annulled or re- moved. The party affected is interested to have his title freed and discharged from an incumbrance or defect of this kind, while evidence to prove it null is withia his power ; for if he shotild be postponed in seeking a remedy until some one as- serted claims founded upon the matter constituting the cloud, perhaps by death of witnesses or loss of papers, he would be prevented from proving the real equities. Therefore, without requiring that he should wait till some one seeks to dispossess him, equity will entertain a suit by one who discovers a muniment of title adverse to his, which is appar- ently good and valid, but, in truth, void, seeking to have it adjudged void, and the true title established. To con- stitute a cloud on title, such as waiTants this equitable interference, the matter complained of must be good and valid on its face, or to appearance; for, if the invalidity of the adverse claim will of necessity appear by the very paper which must be put forth as the foundation of it, ttere is no need of equitable inter- ference in advance. Upon the other hand, the real invalidity, the fraud, ir- regularity, want of power, or the like, extrinsic to it, upon which plaintiff founds his prayer for relief, must be clearly established by proof; for it is not reasonable that equity should interfere to foreclose in advance claims that may have a just foundation. See U. S. Di- gest, tit. Cloud on title ; Equity. COACH. Is a generic term; means a, kind of carriage, distinguished from other vehioles chiefly as being a covered box hung on leathers, with four wheels, and in- cludes omnibuses, mail-coaches, and stage- coaches. A power to a bridge company to collect tolls from coaches extends to an ordinary stage-coach carrying mails and passengers. Cincinnati, &c. Tump. Co. o. Neil, 9 Ohio, 11. COAST. That portion of the land which adjoins the sea. It imports some- what greater breadth than shore, while shore is appropriate to rivers and inland waters, which coast is not. Coasting trade. Commerce and navigation, or communication by ves- sels, between different places along the shore of the United States, as distin- guished from commerce with ports in foreign countries. Vessels engaged in the coasting trade and in foreign com- merce are the subject of distinct sys- tems of regulations, under the acts of congress. CODE 236 CODE As defined by act of congress of Feb. 18, 1793, the term coasting trade means com- mercial intercourse carried on between dif- ferent districts in the same state, and be- tween different places in the same district, on the sea-coast or on a navigable river. Steamboat Co. v. Livingston, 3 Cow. 713. The business of a ferry-boat is not in- cluded in the coasting trade; the words mean the trade along the shore. United States V. The William Pope, 1 Newb. 256, 259 ; United States v. The James Morrison, Id. 241, 252. Coast-guard. A body of ofScers and men raised and equipped by the commis- sioners of the admiralty, for the defence of the coasts of the realm, and for the more ready manning of the navy In case of war or sudden emergency, as well as for the pro- tection of the revenue against" smugglers. (Stat. 19 & 20 Vict. c. 83). Modey ^ W. Coastwise. Vessels " plying coastwise " are those which are engaged in the domes- tic trade, or plying between port and port in the United States, as contradistinguished from those engaged in the foreign trade, or plying between a port of the United States and a port of a foreign country. San Francisco v. Steam Navigation Co., 10 Cal. 504. a^. Clark, 49 N. Y. 122. Steamboat companies are liable as com- mon carriers. Boon v. Steamboat Belfast, 40 Ala. s, 8. 184 ; compare Cox v. Peterson, 30 [d. 608 ; Hibler v. McCartney, 31 Id. 501. The owners of a tow-boat are not liable as common carriers. An action against them, for loss of the vessel in tow, must be founded on negligence. Hays v. Millar, 77 Pa. S«. 238; Smith v. Pierce, 1 La. 350; Caton V. Eumney, 13 Wend. 387 ; Alexander V. Greene, 3 HiU, 9 ; Wells v. Steam Navi- gation Co,2N. Y. 204; The Lyon, 1 Brown Adm. 59; The Stranger, Id. 281; The Oconto, 5 Biss. 460. A tow-boat used in towing barges or other water craft, which are loaded with freight, from one point to another on the Mississippi river, is a common carrier. Bus- sey V. Mississippi Valley Transp. Co., 24 La. Ann. 165. Telegraph companies are common car- riers, and liable as such ; as in a case where the loss of a debt occurred through delay in the transmission of a message. Parks v. Alta, &c. Tele^aph Co., 13 Cal. 422 ; s. p. Bryant v. American Telegraph Co., 1 Daly, 575. A telegraph company cannot be consid- ered a common carrier, since it does not contract in any common-law obligation. Bimey v. New York, &e. Co., 18 Md. 341. COMMON LAW. 1. In its broad- est and most general signification, those rules or precepts of law in any country, or that body of its jurisprudence, which is of equal application in all places ; as distinguished from local laws and rules. 2. That system of law or body of juris- prudence which has prevailed in Eng- land, and is characteristically the growth and development of that kingdom (be- ing derived therefrom by her colonies and by most of the United States) ; as distinguished from the Roman civil law, the canon law, the Hindu law, and other leading systems of distinct governments. 3. So much of the above-mentioned system of jurisprudence as is derived from the immemorial customs of the people, ascertained and expressed by the judgments of the courts ; as distinguished from legislative enactments, or positive or statute law. 4. So much of the above-mentioned system of jurisprudence as became, by adoption of the English colonies in America, the foundation of the law of nearly all the United States. In this sense, statutes of parliament enacted prior to the revolution, and deemed ap- propriate to the situation and wants of the colonies, are included. 5. So much of the above-mentioned system of jurisprudence as is governed by definite and peremptory rules of law, technically so called; as distinguished from those systems in which the admin- istration of justice is governed origi- COMMONALTY 254 COMMUNIS nally, and in theory, by the judicial discretion vested in the court, or by the instruction of authorities in religion ; or equity, admiralty, and ecclesiastical law. The common law, mentioned in the seventh amendment of the conBtitution, Is the common law of England, and not that of any individual state. United States v. Wonson, 1 Gall. 20. The term common law is used in contra^ distinction to equity and admiralty and maritime jurisprudence. It includes not merely suits which the common law recog- nized among its old and settled proceedings, but suits in which legal rights are to he as- certained and determined, in contradistinc- tion to those where equitable rights alone are recognized, and equitable remedies ad- ministered. It does not refer to the par- ticular form of procedure which may be adopted. Parsons v. Bedford, 3 Pet. 433, 446, 447 ; Fenn v. Holme, 21 How. 481, 486. There is no common law of the United States, as contradistinguished from the in- dividual states ; and the courts of the United States, instead of administering the common law, or any particular system, conform to the law of the states where they are situ- ated. People V. Folsom, 5 Cal. 874. Proceedings on habeas carpus before a cir- cuit judge at chambers are not proceedings according to the course of the common law, in the sense in which that expression is ap- plied to proceedings reviewable on writs of error. Faust v. Judge, &c., 30 Mich. 266. Commou-Iaw procedure acts. Three acts of parliament passed in the years 1852, 1854, and 1860, respectively, for the amend- ment of the procedure in the common-law courts. The common-law procedure act of 1852 is Stat. 15 & 16 Vict. ch. 76; that of 1854, Stat. 17 & 18 Vict. ch. 125; and that of 1860, Stats. 23 & 24 Vict. ch. 126. Moz- ley Sr W. COMMONALTY. The masses of the people, undistinguished by rank or office. Thus, when applied to the realm of England, it excludes the royal family and nobility. When applied to a mu- nicipal corporation, it embraces the mass of citizens, and excludes the corporate officers. Mayor, aldermen, and com- monalty is the ordinary corporate name of a city. COMMONS. In English political phraseology, signifles all that class of subjects who are not noblemen, and thus does not vary materially from one signification of commonalty. Com- moner: a member or individual of this class. COMMONWEALTH. Originally, the common weal or public interest. Sometimes it is used to designate a re- publican form of government. It was applied to the government of England during the period from the ex- ecution of Charles I., in 1649, to the restoration of the monarchy under Charles II., in 1660. It has also been adopted as the name of several of the states: the commonwealth of Massa- chusetts, Pennsylvania, Virginia, Ken- tucky. COMMORANCY. The condition of abiding or dwelling; inhabitancy. Com- morant: applies descriptively to a person who abides or dwells in a place. Communis error facit jus. Com- mon error makes a rule of law. A general and long-continued practice of what is erroneous makes the error the rule. This maxim is not to be read literally, or understood in the widest sense of its terms. An inveterate prac- tice, both of general observance and of long continuance, may be sustained against objections or defences founded upon error in such practice; as in the case of modes of conveyance which have been long in use; but, beyond matters of practice, the maxim has no applica- tion. Erroneous views of the law, how- ever widely held and acted upon, even where sustained by judicial decisions, are no answer to the enforcement of the true rule, when the error has been dis- covered and clearly ascertained; other- wise, an error as to the law, or a miscon- ception of the law, would be set up in destruction of the law. The many vul- gar errors as to substantive rules of law, — such as that, to disinherit a child, a small sum, as one shilling, must be be- queathed; that a husband may dispose of his wife by selling her in the open market-place with a halter around her neck; that a man who marries a woman in debt, by taking her from the hands of the clergyman clothed only in her shift, escapes liability for her debts, — however commonly received or practised, could never thereby become established as law. Even as to matters of legal opinion. Lord Denman, in delivering judgment in the House of Lords, in the celebrated case of O'Connell v. Eegina, 11 CI. §■ F. 372, declared that a large portion of the legal opinion which has COMMUNITY 255 COMPENSATION passed current for law falls within the description of " law taken for grant- ed; " and that " when, in the pursuit of truth, we are obliged to investigate the grounds of the law, it is plain, and has often been proved by recent experience, that the mere statement and restatement of' a doctrine — the mere repetition of the cantilena of lawyers — cannot make it law, unless it can be traced to some competent authority, and if it be irre- concilable to some clear legal principle." COMMUNITY. A term applied in French law, also in Louisiana, to the title or ownership of the property of two persons who are intermarried. It is sometimes distinguished as con- ventional community, or that which is created by express agreement in the marriage contract, and legal community, or that which arises by operation of law whei-e the contract is silent. This last is what is usually meant by the term when used alone. The community includes the profits of all the effects of which the husband has the administration and enjoyment, eitlier of right or in fact, of the produce of the recip- rocal industry and labor of both husband and wife, and of the estates which they may acquire during the marriage, either by do- nations, made jointly with them both, or by purchases, or in any other similar way, even although the purchase be only in the name of one of the two, and not of both, because, in that case, the period of time when the purchase is made is alone attend- ed to, and not the person who made the pur- chase. Clark V. Norwood, 12 La. Ann. 598. COMMUTATION. Substitution of a less onerous obligation for the original one. Commutation of fares consists in selling a ticket for a term at a less price than the aggregate of daily fares for the term. Commutation of imprisonment allows a prisoner to acquire, by good be- havior, a right to take a shorter term of imprisonment than that imposed by his original sentence. COMPACT. An agreement or con- tract. Usually applied to agreements of independent states or sovereignties. A compact is a mutual consent of parties concerned respecting some property or right that is the object of the stipulation, or something that is to be done or forborne. Canal Co. v. R. R. Co., 4 GiU S/- J. 1. The terms compact and contract are sy- nonymous. Green v. Biddle, 8 Wheat. 1, 92. COMPANY. An association of per- sons for the purpose of carrying on some enterprise or business. It is used to represent members of a partnership whose names do not appear in the firm. It often signifies an incorporated associa- tion; or may mean an association organ- ized like a corporation, though unchar- tered. Compare Association. It also enters into the names of many classes of corporations. In this connection, it seems usually to designate an organiza- tion for the purpose of carrying on a business for profit. The proper signification of the word company, when applied to persons engaged in trade, denotes those united for the same purpose or in a joint concern. It is so commonly used in this sense, or as indicat- ing a partnership, that few persons accus- tomed to purchase goods at shops, where they are sold by retaU, would misapprehend that such was its meaning. Palmer v. Fick- ham, 33 Me. 32. English clubs are not companies within the joint-stock companies' wmding-up acts. lie St. James Club, 16 Jur. 1076, 13 Eng. L. §• Eq. 689. Companies clauses consolidation act. An English act, Stat. 8 Vict. ch. 16, passed in 1845, for the general regu- lation of public companies; business corporations. The act was framed by gathering from all prior acts of parlia- ment clauses still in force affecting cor- porations, and consolidating them in one enactment; hence the name, meaning the act consolidating clauses of previous laws relating to public companies. COMPARISON OF HANDS, or HANDWRITING. That mode of as- certaining the genuineness of a signature or manuscript which consists in compar- ing the chirography with that of other papers admitted or proved to be in the handwriting of the person to whom the paper in question is attributed. OOMPENSATIO ; COMPENSA- TION. A remedy in the civil and Scotch law, analogous to set-ofE. Compensatio criminis. Set-off of guilt. The technical name of the plea of recrimination in a suit for divorce; a plea that the plaintiff is guilty of the same kind of offence with which he or she charges the defendant as a ground of divorce. i COMPENSATION. Amends for a loss or privation. COMPENSATIOlir 256 COMPLAINT As compared with consideration and damages, compensation, in its most care- ful use, seems to be between them. Con- sideration is amends for something given by consent, or by the owner's choice. Damages is amends exacted from a wrong-doer for a tort. Compensation is amends for something which was taken without the owner's choice, yet without commission of a tort. Thus, one should say, consideration for land sold ; compensation for land taken for a railway; damages for a trespass. But such distinctions are not uniform. Land damages is a common expression for compensation for lands taken for public use. Compensation is a return which is given for something else ; a consideration. Searcy V. Grow, 15 Col. 117. Compensation is of three kinds : legal, or by operation of law ; compensation by way of exception; and by reconvention. Stewart v. Harper, 16 La. Ann. 181. The phrase compensation differs from salary. One who is county collector and treasurer is entitled to but one compensa- tion. Kilgore v. People, 76 III. 548. As used in the Ohio state constitution, compensation defines the money that must be paid to satisfy a wrong or injury inflict- ed ; and sucli money must cover the extent of the injury, irrespective of the value of the property taken. Symonds v. Cincin- nati, 14 Ohio, 176. Compensation, in a statute providing a mode of determining compensation for land taken for public use, means an equivalent for the value of the land. Any thing be- yond that is more than compensation. Any thing short of it is less. New Jersey E. E. & Tr. Co. V. Suydam, 17 N. J. L. 25, 47 ; compare Van Schoick ». Delaware, &c. Can. Co., 20 N. J. L. 249, 252. Compensation, as used in a constitu- tional provision that private property shall not be taken for public use unless just com- pensation be made therefor, means compen- sation must be in money. Any benefit to the remaining property of the owner, aris- ing from public works for which a part has been taken, cannot be considered as com- pensation. Alabama, &c. E. E. Co. v. Bur- kett, 42 Ah,. 83. The term " just compensation " for injury to property taken by a railroad, excludes from consideration the general enhance- ment of the value of other property of the same owner. The cash value and the ac- tual damage are the true standard by which to determine the compensation to which in such cases the party is entitled. Brown v, Beatty, 34 Miss. 227 ; Isom v. Hississippi Central E. R. Co., 36 Id. 800. Benefit to the adjacent property of the owner whose land is taken for a public use, is, in so far, compensation for the talcing, within the meaning of the constitution; and, if it equal the loss or damage from the taking, it is a just compensation. Bctts v. City of Williamsburgh, 15 Barh. 2&5. When the word just is used (as in Nev. Const, art. 1, § 8) to intensify the word compensation, something more than the mere market value should be deemed in- tended. Virginia, &c. E. E. Co. v. Henry, 8 Nev. 165. In an agreement to pay a solicitor just and reasonable compensation for services rendered by him as such, means neither more nor less than taxable costs. Culley V. Hardenbergh, 1 Dm. 508. Comperuit ad diem. He appeared at the day. This phrase is used as the technical name of a plea, in an action of debt upon a bail bond, that the de- fendant appeared at the day required, according to the condition of the bond. COMPETENT. Able ; fit ; qualified ; authorized or capable to act; as a com- petent vntness; competent to hold office, or to sue. Competency: the fact of be- ing qualified or legally capable. Competent jurisdiction, in a statute, held to mean jurisdiction of the person as well as of the subject-matter. Babbitt v. Doe d. Brush, 4 Ind. 355. COMPILE. To compile is to copy from various authors into one work. Be- tween a compilation and an abridgment there is a clear distinction. A compilation consists of selected extracts from different authors ; an abridgment is a condensation of the views of one author. Story v. Hol- combe, 4 McLean, 306, 314. COMPLAINANT. One who makes or prefers an accusation of crime. Also, often, the party instituting a suit in equity; the term plaintiff being usually appropriated to the actor in an action at law or in a civil action under the codes of procedure. COMPLAINT. 1. A formal accusa- tion or charge of the commission of an offence, preferred before a magistrate or tribunal authorized to make inquiry. 2. The name given, by the New York code of procedure, and by several of the codes adopted in other states, to the first pleading in a civil action, on behalf of the plaintiff; corresponding to the dec- laration or bill under the practice of courts of common law or equity. Where criminal prosecutions, under a statute, are to be instituted on complaint, a complaint under oath or afiirmation is im- plied, as a part of the technical meaning of COMPOS 257 COMPOUND the terms. Campbell v. Thompson, 16 Afe. 117. When used in a criminal statute, com- plaint sometimes includes indictment. Com- monwealth B. Haynes, 107 Mass. 194. Compos mentis. Sound of mind. Having possession of one's mental fac- ulties. COMPOSITION. An agreement for the reduction of a demand. In this sense of the term, it has several some- what distinct applications in jurispru- dence. Composition deed. An agreement between a debtor and various creditors, that he shall make certain stipulated partial payments, usually proportional, upon his debts, and that upon making these he shall be discharged from the residue. Bouvier and Burrill both define the term as an agreement between a debtor and creditor, by which, &c., as if a com- position might be between a debtor and one creditor only. But we do not un- derstand that the term is properly so used. Accord is the proper term for an agreement between a single creditor and a debtor, for a discharge of the debt by a less payment ; and accord and satisfac- tion, for such an agreement consum- mated by actual payment and accept- ance in full. See Accord. The term composition deed is better reserved for engagements in which several creditors of a debtor — not all, necessarily, but a number — agree with him, and in effect with each other, that he shall be re- leased on making the partial payments he proffers. The distinction is important, because it is the mutual agreement of the creditors among themselves which furnishes the consideration to sustain the agreement, while it remains execu- tory. An agreement between a debtor and a single creditor for a discharge, to be given upon making a partial pay- ment in future, lacks consideration. It is when several creditors unite in the deed, so that the engagement of one forms a consideration for that of an- other, that an executory agreement of this nature becomes obligatory. An agreement between a debtor and a single creditor, providing for stipulated par- tial payments in discharge of the entire debt, is invalid for want of consideration ; 17 but where several creditors join, the consent of each one furnishes a consideration for that of the others. Pierson v. MeCahill, 21 Cal. 122; Mitchell v. Sawyer, 71 N. C. 70; Eenard v. Tuller, 4 Bosw. 107 ; HaU v. M.eT- Till, 5 Id. ^68,9 Abb. Pr. 116. Composition of a demand means pay- ment of a part in satisfaction of the whole. Abandoning a prosecution on payment of costs merely, is not making a composition. Haskins v. Newcomb, 2 Johns. 405 Composition in bankruptcy. Both the English and American bankrupt laws contain provisions for composition ; which is, in effect, an arrangement be- tween the bankrupt and the creditors, whereby the amount he can be expected to pay is liquidated, and he is allowed to retain his assets, upon condition of his making the payments agreed upon. It is, in effect, a composition deed, ar- ranged under the sanction of the bank- rupt law. Under the American system, the reso- lution of composition must be passed by a majority in number of the creditors assembled at a meeting duly called for that purpose, and confirmed by the sig- natures of the debtor and two-thirds in number and one-half in value of all the creditors. Creditors whose debts do not exceed $50 may be reckoned in the ma- jority in value, but not in number. Creditors fully secured can take no part in the composition, without first relin- quishing their security for the benefit of the estate. U. S. Rev. Stat. 989,. § 5103. Composition of ofTences. Compo- sitions were in ancient times allowed for crimes and offences, even for murder. Jacob. They are no longer permissible. See Compounding. Composition of tithes, or real com- position. This arises in English eccle- siastical law, when an agreement is made between the owner of lands and the incumbent of a benefice, with the consent of the ordinary and the patron, that the lands shall, for the future, be discharged from payment of tithes, by reason of some land or other real recom- pense given in lieu and satisfaction thereof. 2 Bl. Com. 28; 2 Steph. Com. 727. COMPOUND INTEREST. The term compound interest has but one mean- ing. It signifies the adding of the grow- ing interest of any sum to the sum itself, and then the taking of interest upon this COMPOUNDING 258 CONCEAL accumulation. Camp o. Bates, 11 Conn. 487. COMPOUNDING. An engagement between one who is immediately affected by an offence committed, and the of- fender, that the fonmer will refrain from prosecuting on consideration of money paid, or of a return of the property stolen, or the like, by the latter. Compounding a felony, is, upon well- settled principles, an offence in itself; and so, also, is compounding a misde- meanor, Jones V. Rice, 18 Pick. 440; except that in respect to offences of a private nature, which also involve a cause of action for damages, the law allows, to some extent, a compromise of the private claim. In England, compounding a felony seems to be regarded as generally crimi- nal; while a misdemeanor may be com- pounded by leave of the court. Thus it is said to be not uncommon, when a person has been convicted of a misde- meanor more immediately affecting an individual, — as a battery, imprison- ment, or the like, — for the court to permit the defendant to speak with the prosecutor, before any judgment is pro- nounced; and, if the prosecutor ' de- clares himself satisfied, to inflict but a trivial punishment. 4 Steph. Com. 234, 235. COMPROMISE. An agreement be- tween the parties to a controversy, for the settlement of the same. In old English law, and in the civil law, it seems to have been used in the sense of submitting to arbitration. When a suit is not carried through to verdict, or decree, or judgment, but the parties agree upon certain terms, which include a stay of proceedings, they are said to compromise the suit. Compromise is defined by La. Code to be an agreement between two or more per- sons, who, for preventing or putting an end to a lawsuit, adjust their difficulties by mutual consent in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. Sharp v. Knox, 4 La. 456. COMPTE ARRETE. A compte ar- riti is an ac count stated in writing, and ac- knowledged to be correct on Its face by the party against whom it is stated. Chevalier V. Hyams, 9 La. Ann. 484. COMPURGATOR. A corroborator, by oath, of the innocence of another. Formerly, a person accused of ciime might, in many cases, purge himself, by oath that he was not guilty, from the accusation, and be thereupon acquitted. As this usage, notwithstanding the so- lemnities adopted in administering the oath, was found to encourage perjury, and to be dangerous to the public safety in other respects, the accused was, in later times, required to produce a cer- tain number of his neighbors, friends, or relatives, who should swear that they believed the accused had sworn truly; and these witnesses were called com- purgators. This mode of trial was ex- tended to certain civil actions, as to 'the actions of debt, and detinue, under the name wager of law (y. v.), where it had the effect of a verdict lor the defendant. It was employed as a method of defence in England so late as 1824, in a case re- ported in 2 Barn. §• C. 538, which was abandoned by the plaintiff. On account of the availability of this mode of trial in debt and detinue, the action of as- sumpsit was adopted in actions on sim- ple contracts, and trover instead of detinue. But wager of law was finally abolished by Stat. 3 & 4 Wm. IV. ch. 42, § 12. CONCEAL. To keep secret, with- hold from the knowledge of others, or shelter from observation or search. Also, to hide; to withdraw where one cannot be found. Concealment: the act of concealing or condition of being concealed. See Alittd est celarb, &o. This word, according to the best lexi- cographers, signifies to withhold or keep secret mental facts from another's knowl- edge, as well as to hide or secrete physical objects from sight or observation. Gerry V. Dunham, 67 Me. 339. The terms "misrepresentation" and " concealment " have a known and definite meaning in the law of insurance. Misrep- resentation is the statement of something as fact which is untrue in fact, and which the assured states, knowing it to be not true, with an intent to deceive the under- writer, or which he states positively as true, without knowing it to be true, and which has a tendency to mislead, such fact in either case being material to the risk. Concealment is the designed and inten- tional withholding of any fact material to the risk, which the assured, in honesty and good faith, ought to communicate to the CONCEAL 259 CONCLUDE underwriter; mere silence on the part of the assured, especially as to some matter of fact which he does not consider it im- portant for the underwriter to know, is not to be considered as such concealment. If the fact so untruly stated or purposely sup- pressed is not material, that is, if the knowl- edge or ignorance of it would not naturally influence the judgment of the underwriter in making the contract, or in estimating the degree and character of the risk, or in fix- ing the rate of the premium, it is not a " misrepresentation " or " concealment " within the clause of the conditions annexed to policies. Daniels v. Hudson River Fire Ins. Co., 12 Cusk 416. Section 68 of the duties collection act of congress of March 2, 1799 (1 Stat, at L. 677), — authorizing customs officers to search for and seize goods subject to duty, which are concealed, — requires that the goods should be secreted, withdrawn from view. The section does not extend to a case where the' goods are fraudulently re- moved. Mere removal of goods, though fraud- ulent, is not a concealment of them. United States V. Three Hundred and Fifty Chests of Tea, 12 Wheat. 486. Concealed may apply to real as well as to personal property. One who takes an apparently legal title to real property, which is void through a secret defect, may be said to conceal such property. Harlow v. Tufts, 4 CusL 448, 453. The term concealed weapons means weapons wilfully or knowingly covered or kept from sight. Owen v. State, 31 Ala. 387. Where a statute of limitations provides that its operation shall be suspended if the debtor conceals the cause of action, some- thing more than mere silence is necessary : there must be an arrangement or contriv- ance to prevent subsequent discovery, and of an affirmative character. The defend- ant is prohibited from doing, at any time, any thing to prevent the plaintiff from ascer- taining, subsequently to the transaction out of which the right of action arises, the facts upon which that right depends, either by affirmatively hiding the truth, or by any device avoiding inquiry which would result in discovery. Boyd v. Boyd, 27 Ind. 429. The mere fact that the owner of stolen goods and his family have no knowledge of the fact that the goods have been stolen, does not amount to a concealment of the larceny, on the part of the thief, within a provision, that, where he conceals the crime, the time of such concealment is not to be, included in computing the period of limi- tation. Flee V. State, 13 Ind. 324. "Conceal" and "harbor," in Ala. Pen. Code, ch. 4, § 14 (Clay's Dig. 419, § 14), are descriptive of two offences : a person may be convicted of " harboring," on proof that he, knowing the slave to be a runaway, fed her, or furnished her with shelter and the like, to enable her to remain away from her master, or to deprive her master of her service, although he may not have "con- cealed " her. McElhaney v. State, 24 Ala. 71. There can be no case of such concealing that will not also be a case of harboring. To conceal, then, is both to harbor and to hide. Cook v. State, 26 Ga. 593. " Conceal " and " harbor," in the fugitive slave law of 1793, do not indicate two dis- tinct offences, but are descriptive of the same offence. Driskill v. Parrish, 3 McLean, 631, 643. The concealment, by a debtor, to avoid summons, which will authorize an attach- ment of his estate, involves the intention on the part of the debtor to delay or pre- vent his creditors from enforcing their de- mands in the ordinary legal modes. This he may accomplish by secreting himself upon his own premises, or by departing secretly to a more secure spot, either in or out of the county of his residence. Dunn v. Salter, 1 Duv. 342. A man who leaves a place to avoid ser- vice of process, requesting false information to be given of his movements, conceals him- self so that process cannot be served upon him, within the meaning of the attachment law of Illinois. If he was in another county, it is no objection that process was not issued to that county. North v, McDonald, 1 Biss. 57. The fact that the defendant lives out of the county where he does business does not amount to concealing himself, within the statute. Boggs v. Bindskoff, 23 III. 66. CONCESSI. I have granted. A prominent ■word of grant in the old Latin forms of conveyances of land. Concessimus : we have granted. See also Dedi. The word cmcessi, or feqffavi, implies a warranty in an estate for years, but not in an estate in fee. Frost v. Eaymond, 2 Cai, 188. CONCLUDE. To close or end ; to terminate. Conclusion: the closing or ending, 1. of mental deliberation, as conclusions of law or fact; or, 2, of a written instrument, as the conclusion of an indictment. Conclusive : that which, by law, terminates claim or dis- cussion; as a conclusive judgment, con- clusive evidence. Conclusion against the form of the statute. Indictments for offences of statutory creation are required to con- clude, that is, end, with a technical phrase in recognition of this ; as, against the form of the statute in such case made, &c. ; or, in the Latin form, con- tra formam statuti. Conclusion of declaration. That part of the declaration which follows COls'CORD 260 CONDITION the statement of the cause of action, and shows the motive or object of the plaintifE in suing. In personal and mixed actions, which are brought for damages, the modern form of the con- clusion is : "to the damage of the plain- tifE doUars, and thereupon he brings suit," &c. Conclusion of plea. In common-law pleading, when the plea tenders a com- plete issue, it must conclude "to the country," as it is called; that is, by the words, " and of this he puts himself upon the country," meaning a proffer to submit the cause to a jury for deci- sion upon the truth of his defence. If the plea alleges new matter, it concludes with a verification : " and this he is ready to verify; " or, if it is matter of record, "to verify by the record." The foi-mal parts of declarations and pleas have been the subject of so much reg- ulation by recent statutes in different jurisdictions that these rules are no longer of general application. CONCORD. Agreement. It has been especially applied to an agreement between parties intending to levy a fine, prescribing how, or in what manner the lands shall pass. It also denotes an agreement between two persons, one of whom has a right of action against the other, settling what amends shall be made for the breach or wrong; a com- promise or an accord. Wharton. CONOOKDAT. A compact; a treaty. Used of a public act of agree- ment; and generally of one with the pope, in regard to ecclesiastical matters. CONCURSO. Suit in concurso is a remedy provided by state laws, to enable • creditors to enforce their claims against a debtor. Schroeders v. Nicholson, 2 La. 350. CONDEMNATION MONEY. As used in an appeal bond, this phrase means the damages wliioh should be awarded against the appellant by the judgment of thf court. It does not embrace damages not included in the judgment. Doe v. Dan- iels, 6 Black/, a CONDITION. A qualification, re- striction, or limitation annexed to an estate, right, or interest, whereby such estate, right, or interest may be created, enlarged, suspended, or defeated, upon an uncertain event. The clause in an agreement, conveyance, will, or other instrument in writing, which expresses the condition by which the obligation, right, interest, or estate created by such instrument may be modified or destroyed, is also called a condition ; and the term is also applied to the uncertain event upon the happening or not happening of which the modification or destruction of such obligation, right, interest, or estate depends. Conditions are frequently annexed to real estate, or to some right or interest in real estate, and are then, in general, expressed in the conveyance or devise by which such estate or interest is created or given. But they may also be an- nexed to bequests, bonds, and other ob- ligations and contracts personal in their nature, and are sometimes contained in statutes and records. . Conditions affecting freehold estates in lands must be created at the same time, as the original conveyance or con- tract, but may be by a separate instru- ment, which is then considered as constituting one transaction with the original. But conditions affecting chat- tels, rents, annuities, and the like, may sometimes be created subsequently to the principal deed. At common law, a condition, or the benefit of a condition, could only be reserved to the grantor, lessor, or assignor, and his heirs or per- sonal representatives, and not to a stranger; and this remains in many of the United States a characteristic of a condition, as distinguished from a limi- tation, although changed in England by Stat. 8 & 9 Vict. ch. 106. Formerly, great importance was attached to the use of particular words in creating a con- dition. Thus the phrases, "upon con- dition," "provided always," or "so that," were deemed sufficient to create a condition, even without words of re- entry; and other phrases, such as " if it shall happen," were sufficient only when a clause of re-entry was added. But, under the later decisions, any words which clearly express an intention to create a condition are sufficient. " Upon condition " is a very usual form. Conditions annexed to realty are to be distinguished from other qualifica- tions, limitations, or restrictions, of like nature, such as charges upon land by will, covenants, limitations, and remain- CONDITION 261 CONDITION Thus, when a testator creates a charge upon the devisee personally in respect of the estate devised, the devisee takes the estate on condition ; but where a devise is made of an estate, and also a bequest of so much to another person, payable from the estate, it is rather to be held a charge. Wherever a forfeiture of the estate is not expressed or implied, it is not a condition, but merely a charge. The distinction between con- ditions and covenants depends rather upon the intention of the parties than upon any fixed rules of construction; but in conveyances, a covenant may be made by either the grantor or grantee ; a condition by the grantor only. As to limitations, besides the distinction al- ready mentioned, that only the grantor or his heirs or personal representatives may take advantage of a condition, while a limitation may be to or for the benefit of a stranger, another difference is, that a condition does not determine an estate without an entry or claim, while a limitation does. In a con- ditional limitation, the reversion is to a third person; in a condition simply, the reversion is to the grantor, his heirs and devisees. And with regard to remain- ders, while a condition may operate to defeat an estate before its natural ter- mination, a remainder does not take effect until the completion of the preced- ing estate. Many distinct classes of conditions are designated by particular terms. Such are express conditions, otherwise termed conditions in deed, which are such as are stated in words; distin- guished from implied conditions, some- times called conditions in law, which are those not expressed directly, but are imposed by law in view of the facts of the case. Thus, when a person makes a lease of lands to another, reserving a rent to be paid at a certain day, upon condition that, if the lessee fails in pay- ment at the very day, then it becomes lawful for the lessor to enter, this is an express condition. But when a person grants another an office, though no con- dition is expressed in the grant, yet the law makes an implied condition, which is, if the grantee do not justly execute all things belonging to the office, it shall be lawful for the grantor to enter and discharge him from his office. The most important distinction among conditions is that between conditions precedent and conditions subsequent. Every condition must be either prece- dent or subsequent. A precedent con- dition must happen or be performed before the estate, right, or interest to which it is annexed can vest or take effect. A condition subsequent may happen or be performed after the com- mencement or taking effect of the obli- gation, estate, right, or interest to which it is annexed, and which may be defeated by non-performance of the con- dition, while by performance it is kept alive and continued. An example of a condition precedent is where an estate is granted to one for life, or for years, upon condition that, if the grantee pay to the grantor a certain sum of money at such a day, then he shall have the fee ; in this case, the condition precedes the estate in fee, and on performance thereof the grantee gains the fee. But where a man grants to another his estate, &c., in fee, upon condition that the grantee shall pay to him at such a day a certain sum, or that his estate shall cease, here the con- dition is subsequent, and following the estate, and upon the performance thereof continues and preserves the same ; so that a condition precedent gets and gains the thing or estate made upon condition by the performance of it, as a condition subsequent keeps and continues the es- tate by the perforinance of the condition. Repugnant conditions are those which are inconsistent with and contrary to the principal act or transaction. Con- ditions not repugnant are sometimes termed, by way of distinction, consist- ent conditions. Collateral conditions require the doing of something collateral to the principal act or transaction. Inherent conditions are such as are annexed to the rent re- served out of the land whereof the estate is made. Shep. Touch. 118. Conditions are likewise affirmative, which consist of doing an act; negative, which consist of not doing an act; re- strictive, for not doing a thing; compul- sory, as that the lessee shall pay rent, &c. ; single, to do one thing only; copu- CONDITIONAL 262 CONDONATION lative, to do divers things ; and disjunc- tive-, where one thing of several is re- quired to be done. Shep. Touch. 117; 2 Com. Dig. tit. Condition; Bac. Abr. tit. Condition. A condition is a qualification or restric- tion annexed to a conveyance. The words must not only be such as of themselves im- port a condition, but must be so connected with the grant in the deed as to quality or restrain it. Laberee v. Carleton, 53 Me. 211. The question, whether a condition an- nexed to a devise is to be regarded as a condition precedent or a condition subse- quent, must be determined by the intention of the testator ; and this is to be searched for in the will. Taylor v. Mason, 9 Wheat. 325 ; Finlay v. King, 3 Pet. 346, 374. Condition, in an agreement, may be con- strued to mean " terms," in order to effec- tuate the intention of the parties. Meaner V. M'Kowan, 4 Watts ^ S. 302. CONDITIONAL. That which is de- pendent upon or granted subject to a condition, q. v. Conditional fee. A fee restricted by the grant to some particular class of heirs, and therefore subject to the con- dition implied, if not expressed, that, if the donee should die without such heirs, the land should revert to the donor or his heirs. In other words, it was a fee- simple, subject to the condition that the grantee had heirs of the prescribed class. This species of estate is not gen- erally recognized'in the United States. Conditional liability. The liability of a surety on a guardian's bond, before breach in the condition of the bond, is a conditional liability within the meaning of the second clause of section 19 of the bankrupt law of March 2, 1867, and a dis- charge in bankruptcy releases the surety. Beitz V. People, 72 M. 436. Conditional limitation. A condition- al limitation is where an estate is so ex- pressly defined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail. 1 Steph. Com. 309. Between conditional lim- itations and estates depending on conditions subsequent there is this difference, that In the former the estate determines as soon as the contingency happens ; but in the latter it endures until the grantor or his heirs take advantage of the breach. Id. 310. A condition determines an estate after breach, upon entry or claim by the grantor or his heirs ; a limitation marks the period which determines the estate without any act on the part of him who has the next expectant interest. A conditional limita- tion is, therefore, of a mixed nature, par- taking both of condition and of a limita- tion. Proprietors of Church v. Grant, 3 Gray, 143. When a condition subsequent is followed by a Umitation over, in case the condition is not fulfilled, or there is a breach, it is termed a conditional limitation. Steams V. Godfrey, 16 Me. 158. Conditional limitations consist in the ori- ginal limitations or definitions of an estate, and not in the determination or destruction by means of a condition of an estate pre- viously limited. They apply both to real estate and to personal estate. Brown. Conditional obligation. Usually, an obligation assumed subject to a condi- tion. But in Louisiana the term seems used in a sense equivalent to implied obligation. The Louisiana code defines conditional obligations as those which result from the operation of law, from the nature of the contract, or from the presumed intent of the parties. Moss v. Smoker, 2 La. Ann. 989. Conditional sale. A sale made sub- ject to a condition. Conditional sales are distinguishable from mortgages. " They are to be taken strictly as independent dealings between strangers. A mortgage is a security for a debt, while a conditional sale is a purchase for a price paid, or to be paid, to become absolute on a particular event ; or a purchase accom- panied by an agreement to resell upon par- ticular terms. Sewall v. Henry, 9 Ala. 24. CONDONATION. The forgiveness by a husband or wife of a breach, on the part of the other, of his or her marital duties. The legal effect of such forgiving or condonation is, that the party cannot subsequently seek redress for an offence already forgiven. For instance, if, a^ter his knowledge of the wife's adultery, a husband cohabits with her, such an act of condonation bars him from his rem- edy of divorce; and a wife is equally barred who has condoned an act of cruelty on the part of the husband. But it is an important qualification of the general doctrine of condonation, that a subsequent repetition of the crime re- vives the former offence, and nullifies the intermediate act of condonation by the injured party. Condonation Is a conditional forgiveness founded on a full knowledge of all antece- dent guilt. Odom V. Odom, 36 Ga. 286. The term condonation necessarily in- cludes that operation of the mind, evmced CONFESS 268 CONFISCATE by words or acts, known as forgiveness ; tlie free, voluntary, and full forgiveness and remission of a matrimonial offence. Unless accompanied by that operation of the mind, even cohabitation without fraud or force is insufficient to establish a condo- nation. Betz V. Betz, 2 Robt. 694. CONFESS. To acknowledge, admit, or assent to an allegation or charge. Usually spoken of charges of tortious or criminal conduct. Where the matters involved are not against one's character, admit or assent are the more usual ■words (except in the old phrase, confes- sion and avoidance). Confession: the act or fact of acknowledging the truth of a charge; also, the expression, written or oral, in which such acknowledgment is conveyed. Confession and avoidance. A phrase in the law of pleading, descriptive of that class of pleas which admit the truth of the matters averred, but allege new matter, meet and overthrow them. Often a defendant cannot deny the matters averred in the declaration, yet can establish a complete defence, by showing some new fact which avoids the effect they would otherwise have. Thus, to set up payment does not deny the indebtedness charged: it admits it, but avoids the consequence. CONFIDENTIAL COMMUNICA- TION. A phrase descriptive of informal tion given between persons standing in some relation of duty or trust, on ac- count of which the law will not require it to be divulged, or hold the person making it liable therefor. Examples are, the communications between hus- band and wife, attorney and client, em- ployer and clerk. Privileged communi- cation is a more common and better phrase. CONFINEMENT. An act of con- gress, April 30, 1790, § 12, 1 Stat at L. 115, declares confinement of a master of a vessel, by the seamen, punishable. This has given rise to some decisions on the meaning of the word, in this con- nection. It is held that any -restraint of the master's liberty, whether by de- priving him of the use of his limbs, or by shutting him in the cabin, or, by in- timidation, preventing him from the free use of every part of the vessel, amounts to such a " confinement " as is punishable. United States ' v. Sharp, Pet. C. Ct. 118. A confinement of the master may be completed by any moral or physical restraint which prevents his freedom of movement, and command of the ship. The restraiat must, however, in either case, be illegal; for it is no offence for the seamen to confine the master for a justifiable cause, or in justifiable self-defence. United States V. Thompson, 1 Sumn. 168. And it is sufficient that there is a personal seizure or restraint of the master, although it may be for the purpose of inflicting per- sonal chastisement upon him. United States B. Savage, 5 Mas. 460. But a mere assault and battery upon the master does not amount to a confine- ment. United States v. Lawrence, 1 Cranch C. Ct. 94. CONFIRM. To complete or establish that which was imperfect or uncertain; to ratify what has been done without authority or insufficiently. Confirma^ tion : an act or instrument supplying de- fects in a preceding one, or rendering valid and obligatory something which might have been set aside. The term has a technical use in con- veyancing, where it signifies a deed made by one supposed to have some in- terest or estate in lands, to a person who has possession thereof, or some evidence of title thereto, whereby the imperfect, incomplete, or voidable estate of the latter is made perfect, and rendered un- available, so far, at least, as any interest in the grantor is concerned. It includes, also, such an instrument as gives appro- bation or assent to an estate previously created, and, as far as is in the con- firmer's power, makes it good and valid. CONFISCATE. To appropriate as government property; to seize and ad- judicate for a forfeitiire; to adjudicate and condemn to the public treasury. Confiscation: the act or proceeding of taking or condemning property as for- feited to the sovereign power. Confis- cated: taken by government as for felted. Originally, these words seem to have included any seizure of property to en- rich the government, irrespective of the grounds or reasons which justified it; but usage at the present day tends CONFLICT 264 CONFUSION strongly to confine them to seizures in the exercise of authority to punish of- fences, and chiefly to seizures in punish- ment of a breach of allegiance, or in exercise of belligerent rights and under the laws of war. A taking of property, not primarily to enrich the state, but because the individual thing taken is required for the public use, is seldom called confiscating it. And even a tak- ing in enforcement of a forfeiture im- posed for a breach of a municipal law, as where a vessel implicated in smug- gling is taken from the owners and con- demned to government, is oftener termed seizure than confiscation. Thus, confis- cate is narrower than take ; it is taking in the exercise of the powers of govern- ment to compel obedience and submis- sion to its laws and authority, and does not include taking in the exercise of powers to secure the public convenience, and provide for the general wants ; the powers of taxation and eminent domain. It is nearly equivalent to seize, and to one sense of forfeit; as when we say that the law forfeits a thing, meaning imposes a forfeiture of it; but the other use, as in saying that the owner of a thing forfeits it by his offence, is much more common. It differs from capture, even when used with reference to exer- cise of belligerent rights, in implying an action of government within its own jurisdiction over persons territorially subject to its sway, and by means within the ordinary exercise of civil authority; while capture presents the idea of an employment of military or naval force, outside or independent of civil jurisdic- tion. To confiscate is to transfer property from private to public use ; or to forfeit property to the prince or state. Ware v. Hylton, 3 DaM,. 199. CONFLICT OF LAWS. 1. phrase applied to the doctrine which treats of the proper application of the differing laws of different states or nations, to matters claimed to be subject to both. Thus, if the validity of a marriage made in one country, between parties who have since become residents of another, or if the distribution of assets situated in one state, of a person who died in another, would be determined in one way by the law of the place where the marriage was made or the property lies, but in another by the law of the domicile involved, a question of the conflict of laws arises. It is considered one of the most intricate and difficult branches of jurisprudence. See Story on the Conflict of Laws. CONFORMITY. Adherence to the church of England; acceding to its doctrine and usages. Conformity, bUl of, see Bill of Con- formity. CONFUSION. Admixture; blend- ing; intermingling. Confusion of boundaries. The title of that branch of equity jurisdiction which relates to the ascertainment of conflicting, disputed, or uncertain boun- daries. Confusion of goods. A pouring to- gether or intermixture of goods, the prop- erty of one man, with those belonging to another, so that the two can no longer be distinguished. The term is of importance in discus- sions relative to the right of property in cases where articles have become con- fused by the negligence or improvident act of the owner of a portion. On this subject the general rule is, that if the intermixture is by consent, the proprie- tors have an interest in common, in pro- portion to their respective shares. If one owner wilfully intermixes goods with those of another man, without his approbation or knowledge, the common law does not allow him any remedy, but gives the entire property, without auy account, to the one whose original prop- erty has been, without his concurrence, thus rendered uncertain; the civil law, however, allows a satisfaction for what a person has thus lost. For further dis- tinctions, see Schouler Pers. Prop. 40-54. The term confusion is applicable to a mixing of chattels of one and the same general description, differing thus from ac- cession, which is where various materials are united in. one product. Confusion of goods arises wherever the goods of two or more per- sons are so blended as to have become un- dietinguishable. 1 Schouler Pers. Prop. 41. Confusion is a mixture of liquids, as wine and wine, or wine and honey, or melted sil- ver and gold, or the intermixture of money, coin, or hay, that forms one undistinguisha- ble mass. The placing of crockery, china. CONGRESS 265 CONNECTION or other articles resembling each other, on the same shelf, is not a confusion of thein, within the meaning of the law. Treat v. Barber, 7 Conn. 274 When there has been such an intermix- ture of goods owned by different persons, that the property of each can no longer be distinguislied, what is denominated a con- fusion of goods has taken place. And this may take place with respect to mill logs and other lumber. Hesseltine v. Stookwell, 30 Me. 237. Confusion of rights, or titles. A civil-law expression synonymous with merger as used in the common law, ap- plying where two titles to the same prop- erty unite in the same person, Palmer v. Bumside, 1 Woods, 179 ; or where there is a union of the characters of debtor and creditor in the same person; as if the creditor becomes heir of the debtor, or the debtor heir to the creditor. CONGRESS. In general, an assembly of persons deputed to deliberate upon affairs of state. In the United States, it is the name of the legislative body of the national government ; the term legis- lature being in general use to designate the law-making bodies of the states. The congress, as it is styled in the constitution, or congress, as popularly called, is created by the constitution of the United States, and clothed with all the legislative powers possessed by the general government ; these powers being, however, defined with care. It consists of two houses: a senate, composed of senators, two in number, from each state, elected by the state legislatures; and a house of representatives, composed of members elected by the people inhabit- ing the various districts into which the states are divided for the purpose, whose number is regulated from time to time, in proportion to the existing population. Senators are elected for six years, rep- resentatives for two. Congress meets annually, on the first Monday of De- cember, at the seat of government ; and special sessions may be called, by the president, when public occasion re- quires. The constitutional powers of congress are substantially as follows : 1. To lay and collect taxes, duties, im- posts, and excises, to pay the debts and pro- vide for the common defence and general welfare of the United States. 2. To bor- row money on the credit of the United States. 3. To regulate commerce with for- eign nations and among the several states and with the Indians. 4. To establish a uniform rule of naturalization and uniform laws of bankruptcy throughout the United States. 6. To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures. 6. To provide for the punishment of coun- terfeiting the securities and current coin of the United States. 7. To establish post- offices and post-roads. 8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their re- spective writings and discoveries. 9. To constitute tribunals inferior to the supreme court. 10. To define and punish piracies and felonies on the high seas and offences against the laws of nations. 11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. 12. To raise and support ar- mies. 13. To provide and maintain a navy. 14. To make rules for the government of the land and naval forces. 15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions. 16. 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. 17. To exercise exclu- sive legislation over the District of Colum- bia, and also over all places purchased for forts, magazines, arsenals, dock-yards, and other needful buildings. 18. To make all laws necessary and proper for carrying into execution the foregoing powers. CONJUGAL RIGHTS. The per- sonal rights arising from the relation of husband and wife. In England, a suit may be main- tained for a restitution of conjugal rights, where one party without legal excuse lives separate from the other; but this is a branch of the ecclesiastical jm-isdiction, and is a remedy which has never been adopted in the United States. CONNECT. In a railroad company's agreement to transport perishable goods by a special daily train to a certain point, " there to connect with " another railroad at a certain hour, imports a complete deliv- ery the moment such first carriers' cars reach the point where the roads of the two companies join, and the engine is detached from the car. Truax v. Philadelphia, Ac. B. R. Co., 3 Houst. 533. CONNECTION. Is used in 1 Mich. Comp. Laws, § 2032, in its common and approved meaning at the time of the pas- sage of the act ; and denotes any relation, organic or conventional, by which one soci- ety is linked or united to another. Allison V. Smith, 16 Mich. 405. CONNIVANCE 266 CONSENSUS ConuectioHS is a loose and indefinite word ; more vague than relations. In pop- ular phrase, a wife's relations are her hus- band's connections ; but connections, un- less they are also relations, never take by the statute of distributions. Storer v. Wheatley, 1 Pa. St. 506. The phrase guilty connection does not, of itself, describe any specific offence ; but, when applied to a man and woman, it im- ports a carnal connection. State v. George, 7 Ired. L. 321. -—^ CONNIVANCE. A wronglnl, cor- rupt, or guilty assent to or permission of a toit or ofience. It usually implies a consent given while the tort or offence is proceeding, and one which is given contrary to law or good morals ; but does not imply any actual co-operation, only the bare assent or neglect to forbid or oppose. CONSANGUINITY. Blood relation- ship; kindred by birth; the connection imputed to persons in view of their hav- ing a common ancestor. Consanguinity is spoken of as lineal or collateral. It is lineal between two persons one of whom is descended from the other; as between a given person, usually called in this connection the propositus, and his son or grandson, his father or grand- father. It is collateral where the two persons are descended from some com- mon ancestor, but neither of them from the other; thus the collateral relatives of the propositus are his brother or sister, his nephew, his uncle, cousin, &c. Consanguinity is reckoned by degrees. In computing lineal consanguinity, each generation answers to one degree. For collateral consanguinity two different modes are employed by the common law and by the civil ; but the difference is a verbal one, and does not affect the right to inherit. CONSENSUS. Accord; agreement of minds ; consent. Consensual : con- tract or relation established by mutual consent of parties only. Consensus, non coucubitus, facit matrimonium. Consent, not sexual in- tercourse, constitutes marriage. The mutual agreement of the contracting par- ties to live together as husband and wife is the essence of the marriage contract, not sexual intercourse. Thus a contract to marry per verba de presenti, though not followed by cohabitation, amounts to a valid marriage. On the other hand, no valid marriage can be contracted where either party is at the time under mental incapacity, and therefore inca- pable of giving the consent, which is an absolute requisite. The maxim is also a rule of the civil law, by which marriage was considered a mere consensual contract, differing from other contracts of that class only in being indissoluble by the consent of the contracting parties. It was also deemed to be a contract executed with- out any part performance. And although by the common law some religious sol- emnity was essential to constitute a full and complete marriage, yet the mere consent of the parties expressed per verba de presenti was sufficient to render the contract of marriage indissoluble between the parties themselves, and either of them might compel the solem- nization of the required ceremonial. Broom Max. 506; Regina v. Millis, 10 Clark §• F. 655. Consensus tollit errornm. Consent takes away error. The effect of an error in procedure may be obviated by consent of parties. And the consent will be implied from a mere acquies- cence of the party who might take ad- vantage of the error. Upon this maxim rests the doctrine of waiver, which is of wide application in pleading and in aU matters of practice. But the principle that an error may be cured by the con^ sent or waiver of the party who might take advantage of it, applies to matters of form chiefly, and does not in general extend to substantial rights. Thus con- sent cannot give jurisdiction. And with respect to pleadings, while objections of mere form are waived by pleading over instead of objecting, defects in matters of substance may often be reached by a demurrer interposed after pleading over. So in other proceedings in an action, a mere irregularity may be waived by the opposite party proceeding in the action, after knowledge of such irregularity, and without objection, where a correction might have been made, if objection had been taken ; but any thing which is altogether defective, and is an absolute nuUity, cannot be waived by any subsequent proceedings CONSENSUAL 267 CONSIMILI or laches of the opposite party. Broom Max. 136. CONSENSUAL. Contracts formed by mere consent are so styled. CONSENT. Approval; permission; concurrence of wills. Consent is an act of the reason, upon deliberation, the mind weighing, as it were, the good or evil on either side; and implies three things, — a physical power, a mental power, and a free use of both ; hence, if consent is obtained by intended imposition, surprise, undue in- fluence, &c., it is treated as no consent. See Story Eg. Jur. 186. There is a difference between consenting and submitting: every consent involves a ' submission ; but a mere submission does not necessarily involve consent. Barnes v. Butcher, 9 Carr. ^ P. 722. Consent rule. A proceeding in the old action of ejectment, . by which the tenant in possession specified for what purposes he intended to defend, and bound himself to admit all the fictions necessary under that action for trying the title to the land in question, every thing, in fact, but the title itself. Ex- cept on condition of entering into this stipulation, he was not admitted to de- fend his title. CONSEQUENTIAL. The terra con- Bec[uential damage means sometimes dam- age which la so remote as not to be action- able; sometimes damage which, though somewhat remote, is actionable ; or damage which, though actionable, does not follow immediately, in point of time, upon the do- ing of the act complained of. Eaton v. B., C, & M. R. R., 51 N. H. 504. CONSIDERATION. The induce- ment or compensation for something promised or done; the material cause which moves a party to agree; some- thing that deserves and is to receive a recompense. The consideration is ordinarily of the essence of a contract ; for promises which have no consideration are not, in gen- eral, enforceable by law, uidess, some- times, when embodied in a formal sealed instrument, or when third persons, by acting upon the supposition they were valid, acquire the just right to have them enforced. In general, a consideration may be either an advantage or benefit moving to the promisor, or a loss or privation sus- tained by the promisor upon request of the promisee. Considerations are called express, when they are stated in words, oral or written, in the contract; and implied, where they are enforced by law, without requiring that they should have been stated. Considerations are distinguished, ac- cording to their nature and power to sustain a contract, into several classes. Valuable: when the benefit conferred on the promisor or the detriment sus- tained at his instance by the promisee, is of a pi-operty nature, is, though re- motely, capable of estimation; a con- sideration of this class is required to sustain a transfer of property as against creditors and purchasers in good faith, for value. Equitable, or moral; when they involve only the performance by free-wUl of an obligation which was once enforceable, but is so no longer. Good: where neither value nor obligation un- derlies the inducement, but the trans- action is founded on kinship, natural affection, and the like. Illegal: when they involve the doing something pro- hibited by law. Impossible: when they cannot, by reason of their inherent diffi- culty, be performed. CONSIDERATUM. A phi-ase of the old formula or style of giving judg- ments was, et ideo consideralum est per curiam, and therefore it is considered by the court, that, &c., stating whatever is adjudged. CONSIGN. To send one's movable property to a person in another place, for custody, sale, &c. Consignment: the act or transaction of sending prop- erty away for sale, &c. ; also, some- times, the bulk or mass of goods them- selves which are so sent. Consignor: the owner or person by whom property is sent upon a consignment. Con- signee: the person to whom it is sent. Consigned implies agency, not owner- ship in the consignee. Rolker v. Great Western Ins. Co., i Abb. App. Dec. 76. CONSIMILI CASU. In like case. An early English statute (Westm. 2 oh. 24) provided that as often as it should happen in chancery that in one case a writ is found and in the like case {in consimili casu) a remedy is wanting, CONSISTORY 268 CONSOLS the clerks of the chancery should agree to make a writ. Termes de la Ley. Quite a number of writs were framed in the ex- ercise of this authority, somewhat as, later, in courts of common law, special actions on the case were allowed where declarations employing only the com- mon counts were not appropriate. Such writs were described as the writs framed in consimili casu. And one of these, either because it was very often used, or for some other cause giving it promi- nence, became known as the writ con- simili casu. It lay for a reversioner, where the tenant for life or by the curtesy aliened in fee or for life, against the party to whom the tenant so aliened the property. CONSISTORY COURTS. Courts held by diocesan bishops within their several cathedrals, for the trial of eccle- siastical causes arising within their re- spective dioceses. The bishop's chan- cellor, or his commissary, is the judge; and from his sentence an appeal lies to the archbishop. {Cowel; 3 Bl. Com. 64; 3 Steph. Com. 305, 306.) Mozley §• W. CONSOLATO DEL MARE. The title of an ancient and highly esteemed collection of sea laws, of continental Europe. CONSOLIDATION. Union or mer- ger of several individuals of homogene- ous nature in one. To consolidate means more than to re- arrange or re-divide. It means, to unite in one mass or body ; as, to consolidate the forces of an army. To .consolidate two bills, in parliamentary usage, is to unite them in one. Independent Dist. of Fairview V. Durland, 45 Iowa, 53. Consolidation of actions. This ex- pression applies to a mode of proceed- ing applicable where several actions are pending in the same court, between the same parties, and involving the same question. Under such circumstances, the court may direct that one cause only shall proceed to trial, and the others shall follow the event of that; or, in some jurisdictions, that all the actions be consolidated into one, and proceed to trial and judgment as one suit. What is known in English practice as the consolidation rule is a rule for consolidating actions, said to have been devised by Lord Mansfield, the effect of which is to bind the plaintiffs or de- fendants in several actions by the ver- dict in one, where the questions in dis- pute and the evidence to be adduced are the same in all. Lush's Pr. 752; Kerr's Act. Law. Consolidation of benefices, or par- ishes, is the uniting of two or more of either into one. Consolidation of clauses. Several acts of parliament which have attained celebrity on account of their compre- hensive character and the importance of the subjects to which they relate are known by a phrase descriptive of the manner in which they were framed. They were not draughted anew, but compiled chiefly by extracting from pre- vious laws the clauses relating to the topic in question, and consolidating them in one act; the general object be- ing to give the old law in a new and more convenient form. Thus, there have been the companies clauses consol- idation act, and the lands clauses con- solidation act; meaning acts formed by consolidating the clauses of existing laws relative to incorporation and man- agement of public companies, or to the taking of lands. Consolidation of corporations. In case two or more corporations, usually such as were organized for the same general purpose, or for connected pur- poses, become merged or united in one, this is termed, usually, in the United States, consolidation; in England, amal- gamation, q. V. CONSOLS. An abbreviation of the expression consolidated annuities, and used in modern times as a name of va- rious funds united in one for the pay- ment of the British national debt. In comparatively early times loans were obtained by the British government upon the pledge of various taxes as secu- rity for repayment; each fresh loan be- ing secured upon a distinct source of income. In I75I, by which time these loans had become too large for govern- ment to contemplate a payment of pi'in- cipal, and too numerous to be separately managed, they were united in one gen- eral stock, bearing an interest of three per cent, and known as the consols, or the consolidated annuities. Wharton. CONSORTIUM 269 CONSTABLE CONSORTIUM. Marriage ; also union, society, companionship. CONSPIRACY. The agreement or engagement of persons to co-operate in accomplishing some unlawful purpose, or some purpose which may not be un- lawful, by unlawful means. State v. Mayberry, 48 Me. 218; State v. Rowley, 12 Conn. 101 ; Smith v. People, 25 III. 17; Commonwealth v. Hunt, 4 Mete. (Mass.) Ill ; State v. Bartlett, 30 Me. 132; Alderman v. People, 4 Mich. 414; State V. Bumham, 15 N. H. 394; Hinchman «. Richie, Bright. 148. The gist of a conspiracy is the unlawful com- bining ; and the conspiracy — that being distinguishable from the unlawful thing to be done — is complete when the com- bination or agreement is made: it is not necessary that the conspirators should have proceeded to actual efforts to ac- complish their purpose, unless this is required by- statute. Commonwealth ).. Judd, 2 Mass. 337; Commonwealth v. Tibbetts, Id. 538; Commonwealth v. Warren, 6 Id. 74; People v. Mather, 4 Wend. 259; State v. Cawood, 2 Stew. 360; State v. Rickey, 9 N. J. L. 293; State V. Buchanan, 5 Bar. §■ J. 317; Collins V. Commonwealth, 3 Serg. §• B,. 220; see also Respublica v. Ross, 2 Yeates, 8 ; Morgan v. Bliss, 2 Mass. 112 ; Commonwealth v. Hunt, Thach. Cr. Cos. 609; People v. Richards, 1 Mich. 216. Still less is it necessary that the conspirators should succeed. At com- mon law, the mere conspiracy constitut- ed the offence; under the statutes of many of the states, some act must be done in execution of the design agreed on to complete the offence. State v. Norton, 23 N. J. L. 33. The final re- sult does not vary the legal character of the offence. Hazen v. Commonwealth, 26 Pa. St. 366. Conspiracy is, in its nature, a joint offence; less than two persons cannot be accused of it. Com- monwealth V. Manson, 2 Ashm. 31; Mc- Dermut's Case, 4 City H. Rec. 12. The common-law doctrine of conspir- acy has been, in many of the states, remodelled by statutes which define the offence, tending generally, we believe, towards a restriction upon the common- law definition. These statutes must be consulted for an accurate view of the elements of the offence in the particular state. Conspiracy is defined as an agreement between two or more persons falsely to charge another with a crime punishable by law, either from a malicious or vindictire motive or feeling towards the party, or for the purpose of extorting money from him ; or wrongfully to injure or prejudice a third person, or any body of men, in any other manner ; or to commit any offence punish- able by law ; or to do any act with intent to prevent the course of justice ; or to effect a legal purpose with a corrupt intent, or by improper means. Brown. Conspiracy is a consultation or agree- ment between two or more persons, either falsely to accuse another of a crime punish- able by law; or wrongfully to injure or prejudice a third person, or any body of men, in any manner ; or to commit any of- fence punishable by law ; or to do any act with intent to prevent the course of justice ; or to effect a legal purpose with a corrupt intent, or by improper means. Hawk, PL C. ch. 72, § 2; Arehb. Cr. PL 390 (add- ing also combinations by journeymen to raise wages) ; State v. Murphy, 6 Ala. 765. Conspiracy is a confederacy between two or more persons to injure an individual by an unlawful act, &c. Mclntyre v. Mancius, 16 Johns. 592. Conspirators, is not used as precisely equivalent to persons committing the offence of conspiracy. It has received a different shade of meaning from being defined by statute, in England, as meaning those who bind themselves by oath, covenant, or other alliance, that every of them shall aid the other falsely and maliciously to indict persons, or falsely to move and maintain pleas, &c. 33 Edw. I. st. 2. Besides these, there are conspirators in treasonable purposes, as for plotting against the govern- ment. CONSTABLE. 1. In the middle ages, this name was applied to a high officer, under monarchical governments, notably in France and England, who was the keeper of the peace of the na- tion, having both civil and military powers. Besides the chief command of the militaiy forces, he exercised the su- preme judicial power in all military matters, and was the highest, or one of the highest, officers of state. The office was abolished or disused in both France and England, the powers conferred be- ing considered too great to be safely ex- ercised by a subject. The office of con- stable of Scotland continued to exist CONSTABLE 270 CONSTITUTION until abolished in the reign of George III. 2. In modern times, the name usually designates an officer whose general duty is to keep the peace within a particular district, and who, as conservator of the peace, exercises a limited judicial power, having authority to arrest supposed of- fenders, where crimes are committed within his view, or even upon informa- tion from others of the commission of a crime. Constables are frequently given by statute a ministerial authority in the execution of process, both civil and criminal; and are charged with attend- ance upon courts and justices of the peace, the summoning and keeping of juries, &c. In England, constables were distin- guished as high constables and petty constables, according to the territorial jurisdiction which was conferred upon each class, high constables being the conservators of the peace within a fran- chise or hundred, petty constables with- in a town or parish ; and each having like duties assigned to them by act of parliament, particularly the service of the summonses and the execution of the warrants of the justices of the peace, relative to the apprehension and com- mitment of offenders. The utility of the office of high constable is, however, considered questionable ; and by statute 32 & 33 Vict. ch. 47, passed in 1869, the justices for each county were directed to consider and determine whether it was necessary that the office of high consta- ble of each hundred, or other like dis- trict within their jurisdiction, should be continued. In each county of England, a county constabulary is now estab- lished, under a chief constable. Special constables may also be appointed by the magistrates, to execute warrants on par- ticular occasions, or to act in aid of the preservation of the peace on special emergencies, where an increase of the existing police force appears desirable. This office, in the absence of volunteers, is compulsory. In the United States, the office of constable corresponds to that of petty constable in England. Besides their general authority and duties as conserv- ators of the peace, under which they may arrest, without process, on a rea- sonable suspicion of felony, for offences against the peace committed in their presence, and in various other cases, they have other duties specially assig^ned to them by statute ; generally the execu- tion of process issued by justices of the peace or other judicial officers, and at- tending justices and other courts. In many cities of the United States, the chief officer of the police or constabulary force is entitled high constable. The powers and duties of such officers are fixed by the statutes creating the office. CONSTAT. It appears. 1. Used in its literal sense in the phrase non constat. It does not appear; it does not follow. 2. Used in English law as the name of a certificate by an officer that certain matters therein stated appear of record; as in the exemplification under the great seal of the enrolment of letters-patent; constat being the initial word of the certificate. CONSTITUENT. In its most gen- eral sense, one who has authorized an- other to act for him. Thus used, it may include principals who have made agents, or clients who have employed at- torneys. More frequently it is used in a limited sense, signifying one who is represented by another person politi- cally; the electors in the district of a representative in congress, or in the leg- islature, are termed his constituents. CONSTITUTION. 1. The form of government of a nation or country; the distinguishing nature and features of its political organization. 2. A written instrument emanating from the people of a nation or state, organizing government, prescribing its form and methods, and coniferring and limiting political powers. 3. An eminent or important law or edict; as the novel constitutions of Jus- tinian; the constitutions of Clarendon. It is in the second of the above senses that the term is chiefly used in American jurisprudence; and in this use it dif- fers from charter, and from bill of rights. A constitution creates a government: it assumes that the people are the source of all political authority, and it purports to confer that authority, as a gift from the people, upon a legislature, an execu- CONSTRUCT 271 COlirSTKUCTIVE tive, a judiciary, and other oflSoers, oi their creation. A charter, meaning such an instrument as Magna Charta, emanates from a government already existing; it assumes that the sovereign power, as established, is clothed with full political power; and it proceeds to declare restrictions upon that power in recognition and protection of popular rights. But constitution has sometimes been employed to characterize political instruments of the charter character. For a sketch of the growth of the English constitution, as it is called, see Brown. Constitutional. In countries having a written constitution, such as Switzer- land and the United States, the word constitutional means " in conformity with the constitution," and the word unconstitutional means " in violation of the constitution;" the constitution, in all such countries, being the supreme law of the state. The same terms are sometimes applied to the legislation of the British parliament; but then can scarcely mean more than conformity with, or variation from, some traditional maxims of legislation. Constitutions of Clarendon. Cer- tain constitutions, or statutes, made in the reign of Henry II., a.d. 1164, in a great council held at Clarendon, whereby the king checked the power of the pope and his clergy, and greatly narrowed the exemption the ecclesiastics claimed from the secular jmisdiction. They sent all controversies arising out of ecclesiastical matters to the civil courts ; restricted appeals to the pope in spiritual matters ; defined the privileges and obli- gations of archbishops and bishops ; ex- tended the rights of the crown in ec- clesiastical property; and forbade the clergy to assume to enforce payment of debts. CONSTRUCT. To build; erect; put together, ready for use. A statute relating to railroads " hereafter constructed " applies to a road which has been laid out, and upon the road-bed or bridges upon which expenses have been in- curred, although not completed at the cross- ing. Attorney-General v. Ware River E. E. Co., 115 Mass. 400. 14-iA-H.lt^ An apparatus attached to a machine is constructed at the time when it is attached to the machine ; it is not necessary that the machine should be geared and doing work. Troy Co. v. Odiorne, 17 How. 72. Construction, in a statute giving a lien for " construction or repair of vessels," has been held to include alterations and re- constructions, as well as the original con- struction ; on the ground that, if the latter only had been intended, the word building would have been mpre natural. The Ferax, Sprague, 180. Labor and materials furnished in the alteration of a vessel to fit her for new uses are furnished in her " construction and re- pair." DonneU v. The Starlight, 103 Mass. 227. iH-riA^ CONSTRUCTION. Explanation or interpretation; generally, of writings. Strictly, the term signifies determining the meaning and proper efiect of lan- guage by a consideration of the subject- matter and attendant circumstances in. connection with the words employed. Thus, Dr. Lieber says that construction is the drawing of conclusions respecting subjects that lie beyond the direct ex- pression of the text, — conclusions which are in the spirit, though not within the letter, of the text. Leg. §• Pol. Her- men. And Professor Parsons says, that, while interpretation does not go beyond the written text, construction takes place where texts to be interpreted and construed are to be reconciled with the rules of law, or with compacts or consti- tutions of superior authority, or where we reason from the aim or object of an instrument, or determine its application to cases unforeseen and unprovided for. 2 Pars. Contr. 491, note fa)_. Compare Intekprktation. ^"^ /2*i^***y z zU^ CONSTRUCTI-^fe. That which is deduced, made out, or established by construction; or imputed by inference or presumption of law, rather than be- lieved upon direct evidence ; that which is implied, rather than actual. Constructive assent, or consent. An assent or consent imputed to a party from a consideration of his conduct ; as distinguished from one which he volun- tarily expresses. Constructive fraud. Conduct which necessarily operates to defraud is treated by courts of justice as fraudulent, with- out inquiring into the actual motive; and this imputation or judgment of the law that the acts in question were fraud- ulent in nature and tendency stamps them with what is called constructive CONSTRUCTIVE 272 CONSUL fraud. Thus, a conveyance of property may be pronounced void for fraud upon the grantor's creditors, either upon proof that the grantor intended to defraud them, which is actual fraud, or that the conveyance, under the circumstances, necessarily operated to defraud, which is constructive fraud. ' Constructive larceny. Larceny es- tablished by construction of the conduct of the accused ; as where the taking was not, in appearance, a theft, but he took possession with intent to steal. Constructive malice. Malice im- puted by law, because the eflect of the conduct shown is necessarily unlawful and injurious ; as distinguished from ex- press malice, which is established by di- rect proof that the wrong-doer intended to injure. Constructive notice. Knowledge imputed to a person of something which he was in duty bound to know, though he was perhaps in fact ignorant. Plac- ing a deed upon record gives construc- tive notice of its contents to all persons concerned, not because it is believed they have read the record, but because they should do so. Constructive taking. A phrase used in the law to imply any act short of an actual taking of goods, by which a person shows an intention to convert them to his use; as if a person intrusted with the possession of goods deals with them contrary to the orders of the owner. Constructive total loss, is where a vessel insured remains in specie, and is susceptible of repairs or recovery, but at an expense exceeding its value when re- stored, and the insured abandons the vessel to the underwriter. Here there is not an actual destruction of the whole vessel, but the injury is treated as an entire loss, by construction. Constructive treason. Acts raised to the grade of treason by construction of law. The doctrine of constructive treason was deemed by the founders of the United States government likely to be oppressive and harsh in its operation, and was abrogated by incorporating definitions of the offence in the con- stitution. Constructive trust. A trust raised by law is often styled constructive, irre- spective of the reasons for establishing it. Thus used, the term is interchangeable with "implied" trust. But we advise confining constructive trust to designate trusts raised or impressed from reasons of equity and justice independent of probable intent. " Express " and "im- plied " trusts will then be, respectively, such as the .parties have declared in words, and such as their language indi- rectly indicates they intended. See Ex- press ; Implied ; Be&tiltins ; where the reasons for this view are more fully given. CONSUETUDO. A custom. Some- times used for the common law, i. e. the whole body of customary law, and sometimes for a special or local custom, spoken of in contradistinction from the general law. Consuetude Angliae. The custom of England; the common law. Consuetudo debet esse certa. A custom ought to be certain. Consuetudo est altera lex. Custom is another law. Consuetudo est optimus interpres legum. Custom is the best interpreter of laws. Consuetudo loci est observanda. The custom of a place is to be observed. A local custom may have the force of a law. Although a custom, to be general- ly binding, must, among other requi- sites, be generally known and observed in a country or trade, yet a custom purely local may become binding on those in the locality, and be the law as to the persons and things it concerns, at the particular place or within the particular district. CONSUL. An officer of a commer- cial character, appointed by the diEEer- ent states to watch over the mercantile interests of the appointing state, and of its subjects in foreign countries. There are usually a number of consuls in every maritime country, and they are usually subject to a chief, who is called the con- sul-general. A consul is not a public minister, nor entitled to the immunities of such; but, in the absence of an am- bassador, or charge d'affaires, a consul- general may act as temporary minister, and, as such, be entitled, for the time, CONSUL 273 CONTEMPLATION to these immunities, and to that position. See Tuson on Consuls. Tlie word is said to have been an- ciently the title of an earl or count, be- fltowed in virtue of those officers being called by the king for consultation. Bur- rill. A foreign consul is a public agent, who is ordinarily clothed with authority only for commercial purposes. He is not considered as a minister or diplomatic agent of his sov- ereign, intrusted, by virtue of his office, with authority to represent him in his negotia- tions with foreign states, or to vindicate his prerogatives. The Anne, 3 Wheat. 435. That consuls-general and vice-consuls are included in the general name consul, see U. S. Rev. Stat. § 4130. Consular court. Under treaties, con- suls and other commercial agents have had conferred upon them a certain judi- cial authority over their own country- men within the territory of the nation to which they are accredited. Among Christian nations, this jurisdiction is usually limited to the decision of contro- versies in civil cases arising between fellow citizens or subjects of the consul within the territorial limits of his con- sulate ; the administration of the estates of his countrymen deceased within the same limits; and the registering and certifying wills, contracts, and other in- struments executed in his presence. To consuls of Christian nations resident within countries whose political and religious institutions are difEerent, a civil and criminal jurisdiction over their countrymen is generally intrusted, by treaty, to the exclusion of the local magistrates and tribunals; and a like jurisdiction is frequently conferred by legislation of their own government upon commercial representatives in uncivil- ized countries with whom no treaties are made. This jurisdiction is limited in its extent, and, in all important matters, subject to review by the superior courts of the home country. The name con- sular court is sometimes given to the sitting of a consul or other persons in the exercise of such functions; but, in general, the judicial authority conferred is merely incidental to the more impor- tant duties of the consular office, and does not involve the establishment of such a tribunal as is properly called a court. In the United States, however, VOL. I. 18 the term consular court is recognized, and the organization and procedure in such coui'ts carefully regulated by statute U. S. Rev. Stat. § 4083 et seg.; the jurisdiction of each, of course, depend- ing upon the treaty stipulations with the particular nation, as well as upon the statutes referred to. CONSULTATION. The name of a writ in English practice by which a cause ^ which has been removed by writ of pro- hibition from the ecclesiastical court to ^ the king's court was returned thither again ; for the judges of the king's court, finding the cause to be improperly re- moved from the ecclesiastical court, upon consultation or deliberation, decree it to be returned again. The consultation seems however, in practice, frequently to have been between the judges of the spiritual court and the court of law issuing the prohibition, and not among the judges of the latter court merely. The writ is, in many respects, analogous to the writ of procedendo, q. v. CONTEMPLATION. Bankrupt and insolvent laws have contained provisions relative to acts done, conveyances made, &c., by debtors "in contemplation of bankruptcy," or " of insolvency ; " and these have given rise to decisions on the meaning of this phrase. It was decided by the United States su- preme court, under the bankrupt act of 1841 (overruling several decisions of the lower courts), that to render a security void as given " in contemplation of bankruptcy," it is not sufficient that the debtor should have contemplated a state of insolvency: he must have contemplated an act of bank- ruptcy, or an application by himself to be declared a bankrupt, at the time when he gave the security. Buckingham v. McLean, 13 How. 150. The words "in contemplation of insol- vency or bankruptcy," in the bankrupt act of 1867, do not require an absolute inability to pay all debts in full on a close of busi- ness. If a man cannot pay his debts in the ordinary course of business, as men in trade usually do, he is "insolvent : " and if he has a knowledge of facts which establish that this is the case, any act done by him which gives a preference must be deemed to have been done "in contemplation" of insol- vency. Eison V. Knapp, 1 DiU. 186 ; Martin V. Tool, Id. 203. Contemplation of insolvency should be deemed to mean something more than mere expectation of it ; it includes making pro- vision against its results. Heroy v, Kerr, 8 Bosw. 194. CONTEMPORANEA 274 CONTEMPT By contemplation of bankruptcy is meant a contemplation of the breaking up of one's business, or an inability to continue it At- kinson V. Farmers' Bank, &c., Crabbe, 529. It means a contemplation of becoming a broken and ruined trader, according to the original signification of the term ; a person whose table or counter of business is broken up, bancus ruptus. Everett ». Stone, 3 Story, 446. Where the bankrupt act speaks of a conveyance or transfer by a debtor "in contemplation of bankruptcy," it does not necessarily mean, in contemplation of his being declared a bankrupt under the stat- ute, but in contemplation of his actually stopping his business, because of his insol- vency and incapacity to carry it on. Arnold V. Maynard, 2 Storu, 349; see Ashby i'. Steere, 2 Woodb. <$• M. 347. Contemporanea ezpositio est op- tima et fortissima in lege. A eontem- poraneous exposition is the best and strongest in law. The best and surest mode of expounding an instrument is by referring to the time when and circum- stances under which it was made. Thus, in construing old deeds and writings, care must be taken to expound their words according to the meaning which the words bore at the time when they were used ; not according to the mean- ing attached to the same words in later times. Such construction may be by acts as well as by formal exposition; hence ancient instruments may be in- terpreted by contemporaneous usage ; or the intention of the parties may be elucidated by the conduct they have pursued; and where the words of an instrument are ambiguous, the courts will call in aid acts done under it as a clew to the intention. Broom Max. 682. The same principle is applied to the interpretation of statutes, the rule as to which is well stated by Lord Coke, as follows: " Great regard ought, in con- struing a statute, to be paid to the con- . struction which the sages of the law, who lived about the time or soon after it was made, put upon it; because they were best able to judge of the intention of the makers at the time when the law was made." 2 Inst. 11, 136, 181. Such a construction is more likely to be cor- rect, where there is a difference of opin- ion, than another construction put upon it long afterwards by those who can only gather its purpose from the terms in which it is expressed. But contempo- rary usage is operative only as the inter- preter of a doubtful law ; if the language of the statute be plain, usage cannot avail against it. The rule amounts to no more than this, that, if an act be sus- ceptible of the interpretation which has been put upon it by long usage, the courts will not disturb that construc- tion. Pochin V. Buncombe, 1 Hurl. §• N. 856. CONTEMPT. Disobedience to, or interruption of, the orders or proceed- ings of a court or legislative body; con- duct directly subversive of the authority of the judiciary or legislature. This, however, is only a general indi- cation of the nature and tendency of the acts which have from time to time, and in various jurisdictions, been pronounced contempts. With respect to contempts of court, it was early established that courts of justice have an inherent power to punish persons for contempt of rules and orders, disobedience or resistance to their process, disturbing their sessions, &c. ; and this implied power has been often exercised, and seems, in earlier and unsettled periods of jurisprudence, to have been carried to an extreme. Abuses of the power have led to its re- striction ; hence in several jurisdictions statutory limitations have been imposed upon the power of courts to punish for contempt. Thus, early in the judicial histoiy of the United States, Judge Peck, having rendered an opinion in an important case, which was severely criti- cised in a newspaper as erroneous and contrary to law, committed the writer of the article for a contempt. Judge Peck was impeached for this committal, as unjust and oppressive. He was tried before the United States senate, and acquitted by one vote, on the ground, it is understood, that, though the com- mittal was illegal, he acted ignorantly. But an act was immediately passed, being brought forward by Mr. Buchanan, one of the counsel for the impeachment, limiting the power of the federal courts in punishing for contempts. Those courts can punish only in cases of mis- behavior in the presence of the court, or so near thereto as to obstruct the administration of justice; misbehavior of officers of the courts in their official CONTENTIOUS 275 CONTINGENCY transactions; and disobedience to any process, decree, &c., of the court. ^ Bev. Stat. § 725. Similar restrictions are imposed upon the courts of many of the states, by enactments of the state legis- latures, which furnish a definition of contempt, or rather a specification of the contempts which are punishable within their jurisdictions. Independent of such statutes, the question of what constitutes a contempt is a question of judicial discretion, for the determination of the court or judge whose authority has been impugned ; and the cases range over a very great variety of acts. See IT. S. Digest, tit. Contempt. The power of a legislative body to punish for contempts of its authority is deduced from its power to make rules ; for this implies a power 'of enforcing them, and attachment for contempt is the customary way of punishing viola- tion. 1 Kent. Com. 236; Anderson v. Dunn, 6 Wheat. 204. Such implied pow- er is, however, often restricted or reg- ulated by express statute; as, in New York, by 1 N. Y. Rev. Stat. 154, § 13; in respect to congress by U. S. Rev. Stat. §§ 101-103. Contempt is a disobedience to the court, by acting in opposition to the authority, justice, and dignity thereof. (2 Simft Dig. 358.) Lyon v. Lyon, 21 Conn. 185. Contempts are of two kinds, — criminal and constructive. Criminal contempts are those committed in the immediate view and presence of the court, such as insult- ing language or acts of violence, which interrupt the regular proceedings in courts. Constructive contempts are those which arise from matters not transpiring in court, but in reference to failures to comply with the orders and decrees issued by the court, and to be performed elsewhere. Andros- coggin, &c. R. E. V. Androscoggin, &c., 49 Me. 392. CONTENTIOUS. Contested; liti- gated. The word applies to proceedings prosecuted to determine a controversy, as distinguished from formal and ex parte matters. The litigious proceedings in ecclesiastical courts are sometimes said to belong to its contentious jurisdic- tion, in contradistinction to what is called its voluntary jurisdiction, which is exer- cised in the granting of licenses, probates of wills, dispensations, faculties, &c. CONTENTS. The word contents, as used in the phrase, " any suit to recover the contents of any promissory note or other chose in action," in the judiciary act of congress of Sept. 24, 1789, § 11, means the specific sums named in and payable by the terms of the instruments. An action to recover damages for the neglect of a collecting agent to protest a note is not an action for the contents of a note ; because it is not founded on the contract contained in the note. Barney v. Globe Bank, 5 Blatchf. 107, 114. A bill of lading, containing the usual clause, " shipped in good order," &c., and adding, " contents unknown," acknowledges only the fair external appearance of the packages, excluding any implication as to quantity, quality, or condition of the arti- cle; and the burden is on the shipper to prove the condition of their contents when they came on board. Clark v. Barnwell, 12 Hou). 272. Compare Zercga v. Poppe, Abb. Adm. 397. CONTESTATIO LITIS. Contesta- tion of suit. A narrative of the contro- ver,sy made by the parties; and corre- spon ding to the modern pleadings . Also , the process of coming to an issue in pleading; the forming an issue; or the issue or question in dispute itself. CONTIGUOUS. Used in a policy of fire insurance, in reference to a building, means in close proximity; in actual close contact. Arkell v. Commerce Ins. Co., 69 N. Y. 191. CONTINGENCY. An event that may occur; a possibility. In a statute providing that in a proceed- ing by trustee process, in order to charge a person as trustee, the debt must be " due ab- solutely, and witliout depending on any con- tingency," the contingency contemplated is not a mere uncertainty how the balance may stand between the principal defendant and the alleged trustees ; but is such a con- tingency as may preclude the principal from any right to call the alleged trustee to ac- count. Dwinel v. Stone, 30 Me. 384. Contingency of a process. Where two or more processes are so connected that the circumstances of the one are likely to throw light on the others, the process first enrolled is considered as the leading process, and those subsequently brought into court, if not brought in the same division, may be re- mitted to it, ob cantingentiam ; on account of their nearness or proximity in character to it. The effect of remitting processes in this manner is merely to bring them before the same division of the court or same lord or- dinary. In other respects they remain dis- tinct. Bell. Contingency 'with a double aspect. This expression is employed to denote, the express limitation of one contingent remainder in substitution for another CONTINGENCY 276 CONTINGENT contingent remainder; as -where land is given to A for life, and if he have a son, then to that son in fee ; if he have no son, then to B in fee. Such a disposi- tion of lands is to be distinguished from the limiting of one fee upon another fee, which is not permitted at common law, by the fact that the second contin- gent remainder is not limited upon the first, bat is a mere substitute in case the first shall fail, which does not in any manner derogate therefrom. Although a fee cannot, In conveyances at common law, be mounted on a fee, yet two or more several contingent fees may be limited merely as substitutes or alternatives one for the other, and not to interfere ; but so that one only take effect, and every sub- sequent limitation be a disposition substi- tuted in the room of the former, if the for- mer should fail of effect. Thus in the case of Loddington v. Kime, 1 Ld. Raym. 208, which was a devise to A for life, without impeachment of waste, and if he have issue male, then to such issue male and his heirs for ever, and if he die without issue male, then to B and his heirs for ever, it was held that the first remainder was a contin- gent remainder in fee to the issue of A, and the remainder to B was also a contingent fee, not contrary to, or in any degree de- rogatory from, the effect of the former, but by way of substitution for it. And this sort of alternative limitation was termed a contingency with a double aspect. For if A had issue male, the remainder was to vest in that issue in fee ; but if A had no issue male, then it was to vest in B in fee ; and these were limitations of which the one was not expectant upon and to take effect after the other, but were contemporary ; to commence from the same period, not in- deed together, but the one to take effect in Ueu of the other, if that failed. Feame, Cont. Rem. 373. A contingency with a double aspect oc- curs when one event only is expressed by the party, and two events are clearly in his contemplation. This is a construction in favor of the intention, that the intention may not be frustrated. The general rule is, that an interest to commence on a con- tingency shall not take place unless that contingency shall arise. It is in a few cases only that this favor is extended by con- struction. The exception seems to have been borrowed from the mode in wliich remainders are limited, and the construc- tion which the limitations of remainders receive, and imder which every estate will take place after the preceding estate, with- out any regard to the particular time at which, by the words of the remainder, the estate is to take place. In these cases, the court proceeds on the intention that the determination of every prior or intermediate estate shall accelerate the commencement of the more remote estate. It is on similar grounds of intention that the contingency with flouble aspect is allowed ; for it is allowed on the idea that, by the intent of the testator, the estate limited on a contin- gency referable to one estate shall also take place in case the contingency should not arise on whigh the prior gift is to vest an interest ; and then, in point of law, the con- tingency has a double aspect; providing, by expression, for a contingency annexed to the interest previously limited, and also, by inference and construction of law, for the event that the contingency on which the prior interest is to vest shall never arise. Wharton. CONTINGENT. Possible ; liable, but not certain, to occur ; dependent upon an uncertain event. Contingent demand, or liability. The " uncertain and contingent demands " which might be proved against the estate of a bankrupt under the United States bank- rupt act of 1841 did not include demands whose existence depended on a contingency, but existing demands the cause of action upon which depended on a contingency. French v. Morse, 2 Gray, 111. Before demand and notice, the claim of the holder of a note against the indorser is a contingent liability merely. Matter of Loder, 4Be«. 306; Id. 328. A liability for damages for an ordinary trespass is not a contingent liability. Bou- tel V. Owens, 2 Sand/. 655; 2 Code R. 40. Contingent estate. A future estate, the taking effect of which is dependent upon the happening of some uncertain event ; such as an estate limited to a per- son not in esse. Such estates are vari- ously designated as contingent remain- ders, contingent uses, &c., according to the nature of the particular estate; the quality of dependence upon an uncertain event being the peculiar characteristic of all classes of contingent estates. A future estate is contingent while the event upon which, or the person to whom, it is limited to take effect is uncertain. 1 N. Y. Rev. Stat. 723, § 13. A contiDgent estate depends for its effect upon an event which may or may not hap- pen ; as an estate limited to a person not in esse, or not yet born. Crabhe, Real Prop. § 946. An estate is contingent while the person to whom it is limited is uncertain; i.e., while it is uncertain who will take if the precedent estate should terminate. Sheri- dan V. House, 4 Ahb. App. Dec. 218. Contingent, applied to a use, remainder, &c., implies that no present interest exists, and that whether such interest or right ever will exist depends upon a future un- certain event. Jemison v. Blowers, 5 Barb, CONTI^TGENT 277 CONTINUANCE Contingent legacy. A legacy made dependent upon some uncertain event. Thus, a legacy given to a person upon his marriage, or when he shall attain the age of twenty-one years, is a con- tingent legacy, until it becomes vested upon the occurrence of the particular event. Contingent remainder. A remain- der whose vesting or taking effect in in- terest is, by the terms of its creation, made to depend upon some contingency which may never happen, or which may not happen till after the determination of the preceding estate, or the happening of some other event, by reason of which its capacity of taking effect may be for ever defeated. See Contingent Es- tate. Four classes of contingent remainders are distinguished by Mr. Feame: 1. Where the remainder depends entirely on a contingent determination of the preceding estate itself. 2. Where the contingency, on which the remainder is to take effect, is independent of the de- termination of the preceding estate. 3. Where the condition upon which the re- mainder is limited is certain in event, bnt the determination of the particular estate may happen before it. 4. Where the person to whom the remainder is limited is not yet ascertained, or is not yet in being. For illustrations of each of these classes, with the exceptions and limitations, see Feame Cont- Rem. 4-9. The distinction between contingent remainders, of the first class above men- tioned, and conditional or contingent limitations, consists in this: it is essen- tial to an estate in remainder that it should wait the regular expiration of the particular estate, and should not take effect in possession till that expiration ; but a conditional limitation takes effect on the happening of an event during the continuance of the particular estate. See Id. 10, 14. A contingent remainder is an estate in remainder which is limited to take effect either to a dubious and uncertain person, or upon a dubious and uncertain event, by which no present or particular interest passes to the remainder-man, so that the particular estate may chance to he deter- mined and the remainder never take effect. 2 Bl. Com. 169. A remainder limited so as to depend upon an event or condition which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding estate. Feame Cont. Rem. 3. A contingent remainder cannot take ef- fect until the " prior particular estates " {i.e., the interests for life, or otherwise, ap- pointed to take effect before it) have come to an end; nor, also, unless the requisite contingency has happened. In the former respect, it resembles a vested remainder, and differs from an executory interest. In the latter, it differs from a vested remain- der, and resembles an executory interest. It has the weakness of both these estates, . and the strength of neither. In many cases which may be conceived, the distinction be- tween a rested and a contingent remainder is one of extreme technicality. Mozley S/- W. It is not the mere uncertainty of its ever taking effect in possession that makes a re- mainder contingent, as distinguished from a vested remainder. Wherever the preced- ing estate is limited, so as to determine on an event which certainly must happen ; and the remainder is so limited to a person in esse, and ascertained, that the preceding estate may, by any means, determine before the expiration of the estate limited in re- mainder, — such remainder is vested. On the contrary (save in a few cases excepted on special considerations), wherever the preceding estate is limited, so as to deter- mine only on an event which is uncertain, and may never happen ; or wherever the remainder is limited to a person not in esse, or not ascertained ; or wherever it is limited so as to require the concurrence of some dubious uncertain event, independent of the determination of the preceding estate, and duration of the estate limited in remainder, to give it a capacity of taking effect, — then the remainder is contingent. Wharton. Contingent use. A use whose taking effect is, by the terms of its creation, made to depend upon a contingency. Thus, a conveyance to the use of A and B, after a marriage shall be had be- tween them, raises a contingent use. Contingent uses are simply contingent remainders limited by way of uses, and take effect in imitation of contingent re- mainders. They are otherwise called future uses, and sometimes springing uses. CONTINUANCE. Postponement; adjournment of proceedings in a cau.se to a future day. The term originated when all the pro- ceedings in a cause were conducted orally and in presence of the court, and were entered upon record as they tran- spired. As the proceedings generally occupied more days than one, the court CONTINUANDO 278 CONTRABAND used to adjourn them from time to time ; if these adjournments, which were called continuances, were not made, the suit was at an end, since there was no period at which either party had a right again to call the court's attention to it; and if the continuance, though made, were not entered on the record, the suit was equally at an end, since the record was the only evidence the court would admit of the fact of the continuance. Subsequently, when a cause was put down in the list of causes to be tried at a certain time, and, from some cause or other, it was not then tried, but was ad- journed, a minute of such adjournment was entered on the record, which was technically termed entering a continu- ance, because such entry signified that the cause was not yet finished, but con- tinued pending. Continnance in ofBce. A proTision in the bond of a treasurer of a corporation, whose office is annual, securing his fidelity during his continuance in office, means no longer time than the year for which he was chosen, and such further time as is reason- ably sufficient for the election and qualifi- cation of his successor ; it cannot be ex- tended to embrace an indefinite period by re-election or otherwise. Mutual Loan, &o. Assoc. V. Price, 16 Fla. 204. Continuous adverse use. Is inter- changeable with the terra "uninterrupted adverse use." Davidson v. Nicholson, 59 Ind. 411. CONTINUANDO. By continuing. Under former common-law practice, when one who suffered successive in- juries from a continuation of a trespass desired to recover all his damages in one action, he might do so by alleging in his declaration that the wrong was done cnntinuando, i.e. continually; was kept up between the two days specified. This form is now disused; and in such cases the various trespasses may be alleged to have been committed be- tween certain days. CONTRA. Against; in opposition to ; to the contrary. Is frequently used to denote opposition of counsel or of the court to matter urged in argument. Also, after citation of cases in support of a position, contra is often prefixed to citations of cases opposed to it. Contra bonos mores. Against good morals. This phrase is frequently ap- plied to contracts which are held void because opposed to sound morality. All contracts or obligations which are given for an immoral consideration, or which arise out of an immoral transaction; contracts which are an incentive to crime ; or those even which are offensive to decency, or involve mischievous or pernicious consequences, — are contra bonos mores, and therefore void. Contra formam statuti. Against the form of the statute. This phrase was formerly the proper formal conclu- sion of an indictment for an offence created by statute, and of a declaration for a statute penalty. Contra formam coUationis. Contra formam feoSameuti. Initial words, and hence the names of two writs, now obsolete, which lay to enforce the ob- jects for which lands had been granted. See Termes de la Ley. Contra non valentem agere nulla currit prsescriptio. Against one not capable of acting prescription does not run. Statutes of limitation do not run against a party not capable of acting in support of his rights. Prescription is the result, and, in a measure, the penalty of negligence or laches, and hence does not run against a person under disability. Statutes of limitation generally provide for the suspension of their operation in cases of infancy, coverture, and other disabilities, until the removal of the disability. So war, by preventing a subject of one belligerent from taking judicial proceed- ings in the courts of the other, suspends any statute limiting such proceedings. Contra pacem. Against the peace. This phrase was formerly used in in- dictments and declarations in civil ac- tions of trespass to signify that the acts complained of were committed against the peace of the king or the public. The entire clause in Latin was contra pacem domini regis, — against the peace of the lord the king. The correspond- ing phrases used in American law are "against the peace of the people," or "against the peace of the common- wealth." CONTRABAND. Contrary to a ban, or edict; prohibited. Often used in short for contraband of war. CONTRACT 279 CONTRACT Contraband of Tvar. Prohibited bj the laws of -war. Vessels of a neutral nation which attempt to carry to a bel- ligerent supplies and munitions adapted to aid directly in maintaining the war, expose themselves, by the laws of war, to capture and to confiscation of the goods, and sometimes of the ship, by the other belligerent. Merchandise coming within this principle is termed contraband of war. It is not practicable to give any reliable definition of what articles are and what are not contraband ; much de- pends on the situation of the parties at war, and the circumstances of the case, and the question has often been the sub- ject of treaty provisions. The general ground of the doctrine is, that a neutral shall not aid either belligerent, to the prejudice of the other, by supplies for continuing the war. The destination and purpose of a cargo, to aid in the war, will often render things contraband which, under other circumstances, would not be deemed so. The theory of the present law of contra- band bad its origin in the school of Bologna, but its complete development was coinci- dent with the development of the modern laws of commerce. By this term we now understand a class of articles of commerce which neutrals are prohibited from furnish- ing to either one of the belligerents, for the reason that, by so doing, Injury is done to the other belligerent. To carry on this class of commerce is deemed a violation of neutral duty, inasmuch as it necessarily In- terferes with the operations of the war, by furnishing assistance to the belligerent to whom such prohibited articles are supphed. Halleck Int. Law, 570. Goods contraband of war are of two de- scriptions : munitions of war, the property of a neutral, bound from a neutral port to the territory of either of the belligerents, after the existence of the war is known ; and every species of neutral goods bound from a neutral port to a port belonging to either of the powers at war, and known to be blockaded by the other power. Richard- son V. Maine Ins. Co., 6 Mass. 102. Provisions are not, in general, deemed contraband ; but they are contraband if des- tined for the military use of the enemy. The Commercen, 1 Wheat. 382 ; see N. Y. Firemen's Ins. Co. v. DeWolf, 2 Cow. 56. Money and bullion, when destined for hostile use or for the purchase of hostile supplies, are contraband of war. United States V. Dickelman, 92 U. S. 620. CONTRACT, V. To agree; to ex- change promises; to promise something for a consideration. Contract, n. : an agreement, or mutual undertaking; an exchange of promises or engagements in consideration of each other; a meeting of minds in acceptance of a promise made for a consideration. Also, the instrument or language embodying such a mutual undertaking, exchange of promises or meeting of minds. Very numerous are the definitions which have been offered of this term; the following are those which present distinctive elements : An agreement, upon sufficient considera- tion, to do or not to do a particular thing. 2 Bl. Com. 442; 2 Kent Com. 449. A covenant or agreement between two or more persons, with a lawful considera- tion or cause. West's Symbol, part 1. Jacob. A deliberate engagement between com- petent parties, upon a legal consideration, to do, or abstain from doing, some act. Wharton. A contract or agreement is either where a promise is made on one side and assented to on the other ; or where two or more per- sons enter into engagement with each other, by a promise on either side. 2 Steph. Com. 64. A contract, in legal contemplation, is an agreement between two or more parties for the doing or not doing some particular thing. We have not included the consideration in this definition of the contract, as we do not regard it as, of itself, an essential part thereof. 1 Pars. CotUr. 6. A compact between two or more parties. It is either executory or executed. An executory contract is one in which the party binds himself to do or not to do a particu- lar thing; a contract executed is one in which the object of contract is performed. Fletcher v. Peck, 6 Cranch, 87, 136. An agreement between two or more per- sons to do or not to do a particular thing. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 572 ; Sturges v. Crowninshield, 4 Wheat. 122. A voluntary and lawful agreement, by competent parties, for a good consideration, to do or not to do a specified thing. Rob- inson V. Magee, 9 Cal. 81. A contract (con-traho) is a drawing to- gether of minds, until they meet. This agreement to do or not to do a particular thing is the contract. McNulty v. Prentice, 25 Barb. 204. It ordinarily applies to agreements where both parties become obligated; and not to notes and bills, where one party only is bound. SafEord v. Wyckoff, 4 BiU, 442, 456. It does not, like " deed," bond, &c., necessarily import that there was a written instrument. Pierson u. Townsend, 2 HiU. 550. CONTRACT 280 CONTRACT A deliberate engagement between compe- tent parties to do or to abstain from doing some act. In its widest sense, the term in- cludes records and specialties; but is usually employed to designate only simple or parol contracts. Felham v. State, 30 Tex. 422. The expression, a contract for the pay- ment of money, in a statute entitling an as- signee to maintain an action in his own name, does not include a judgment. John- son V. Martin, 54 Ala. 271. A statute declaring males of the age of eighteen, and females of fifteen, competent to contract marriage, means the actual forming of the marriage contract. The statute does not enable a minor to bind him- self by an executory promise to marry. Frost V. Vought, 37 Mich. 65. Unless a person knows, while service is being rendered, that the other is acting for him, or where he has such information as would lead a person of ordinary under- standing under like circumstances to be- lieve that the other was so acting, no impli- cation of employment can be made. A con- tract is the meeting of the minds of the contracting parties, and where there is no express contract, the party sought to be charged must have such knowledge, or what is equivalent thereto, before his mind can act on the subject and assent to the terms of the contract. Atwater v. Lockwood, 39 Cmn. 45. A contract, here a subscription to cor- porate shares, if it exists at all, must do so by reason of an assent of each party to every proposition of the other, with- out any mod&cation. Wherever there is not an assent, express or implied, to the terms of the proposed contract by both parties, there is no mutuality or any con- tract. Belfast, &c. Ky. Co. v. Unity, 62 Me. 148. Contracts are called express, when the terms of the agreement on both sides are stated in words, orally or in writing, and implied, when they are raised or imposed by law, upon a con- struction of the acts of the parties, and in view of what justice requires from them. Express contracts are classified as con- tracts of record, which are really judg- ments, or of the nature of judgments; special contracts, or specialties, which class includes the various instruments requiring seals; and simple, or parol con- tracts, or such as are either oral, or writ- ten, but not under seal. The statutes of frauds generally require that certain contracts of the simple class should be evidenced by a memorandum ; but this has not generally been thought a suffi- cient reason for setting them apart as a distinct class. Contracts are executory while some act remains to be done, in performance of them; and executed, after every thing has been performed. A contract may be executory as respects one party, and executed as concerns the other. The promise to pay often re- mains executory long after the consid- eration for the payment becomes exe- cuted. The constitution of the United States forbids any state to pass a law "im- pairing the obligation of contracts; " and this has given rise to several deci- sions upon what is a contract, within this provision. The following have been held to be con- tracts : A compact between the different states of the Union. Green v. Biddle, 8 Wheat. 1 ; Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 ; Allen v. McKean, 1 Sumn. 276 ; Bennett v. Boggs, Baldw. 60 ; Spooner v. McConnell, 1 McLean, 337. A legislative grant ; it is a contract exe- cuted. Fletcher v. Peck, 6 Crunch, 87 ; Terrett v. Taylor, 9' Id. 43. An act incorporating a private corpo- ration. Dartmouth College v. Woodward, 4 Wheat. 418; The Binghampton Bridge, 3 Wall. 74. And see numerous cases col- lected, Abb. Dig. Corp. 157, note. Such as a charter of a bank. Provi- dence Bank v. Billings, 4 Pet. 514; Gordon V. Appeal Tax Court, 3 How. 133 ; Planters' Bank v. Sharp, 6 Id. 301; Curran v. Ar- kansas, 15 Id. 304. A statute of a state authorizing public officers to contract with any person for the construction of a toll bridge, and declaring that the contract should bind the state, and that it should not be lawful for any person or persons whatever to erect any other bridge over or across the said river for a term of years. Bridge Proprietors v. Ho- boken Co., 1 WaU. 116. A statute excusing grantees of public lands from making actual settlement dur- ing the period in which they were prevented from settlement by the enemy. Huide- koper V. Douglas, 3 Cranch, 1. A statute declaring that lands to be pur- chased for the Indians should not thereafter be subject to any tax. New Jersey v. Wilson, 7 Cranch, 164. A law of a state issuing transferable swamp scrip, and exempting the land from taxation for ten years, or until reclaimed. McGee v. Mathis, 4 WaU. 156. A sheriff's bond given to secure his paying over moneys collected by him ; he is not a mere bailee of money received, but his bond has the force of a contract that he will pay over. State ». Gatzweiler, 49 Mo. 18. The following transactions have been CONTRACT 281 CONTRACT held not to be contracts, within the protec- tion of the constitution : The provision does not extend to the mere case of an oppressive use of the right of eminent domain by the legislature of a state. Mills v. St. Clair County, 8 How. 569. Compulsory proceedings by a corpora- tion to acquire the title of real property under their charter do not constitute a con- tract vesting any rights in a corporation, where, after taking the proceedings, the corporation neglect for years to fulfil es- sential conditions, on performance of which their acquiring a title depends. In such a case, the interposition of the legislature, by a statute requiring the court to set aside the inquisition had, is not obnox- ious to the objection that it impairs the obligation of the contract. Baltimore & Susquehanna E. E. Co. v. Nesbitt, 10 Sow. 395. The appointment of a public officer, under an act of the legislature fixing his com- pensation, is not a contract with him for the payment of such compensation, within the meaning of the provision of the con- stitution, so as to prevent the legislature from removing the officer, or altering the compensation from time to time. Butler v. Pennsylvania, 10 How. 402 ; Commonwealth V. Mann, 5 Watts S^ S. 418 ; Commonwealth V. Bacon, 6 Serg. %■ R. 322 ; State v. Smedes, 26 Mss. 47. A right of government to priority of payment from debtors forms no part of the contract ; it is rather a personal privilege, dependent on the law of the place where the property lies, and where the court sits which is to decide the case. Harrison v. Sterry, 5 Cranch, 289. A law granting to a town the right to keep a ferry across a public river does not amount to a contract between the state and the town, so far as to preclude the legislsf- ture from revoking the grant. Such a grant is rather a public law than a contract, and towns are subject to legislation for public purposes. East Hartford ?;. Hart- ford Bridge Co., 10 How. 511 ; affirming s. c. 16 Com. 149 ; 17 Id. 79. A statute by which a state waives its prerogative of exemption from being sued in its own courts is not a contract, the ob- ligations of which are impaired by a subse- quent law taking away the right to bring such suits. Beers v. Arkansas, 20 How. 527 ; People V. Commissioners of Taxes, 47 N. Y. 501. Marriage is not a contract within the constitutional provision protecting the ob- ligation of contracts. It is a civil institu- tion or relation, subject to be regulated and controlled by law, so far as the rights of the parties thereto in the property of each other is concerned. Starr v. Hamilton, Deady, 268. The following decisions illustrate the views which have been taken of the mean- ing of contract in various applications and uses: The word contract, in the statute of frauds, does not include a recognizance. A recognizance is merely an acknowledgment of record of a pre-existing debt. Gay v. State, 7 Kan. 394 A mere promise by one to pay money to another is a contract, and is within the meaning of the provision of the statute of frauds requiring a memorandum in writing of any agreement not to be performed with- in one year, as well as a mutual agreement, where each party stipulates to something. Cabot V. Haskins, 3 Pick. 83. A letter from A to B & M, with an in- dorsement thereon by B, relating in direct terms to the letter, bearing the same date, and purporting to be a material and sub- stantial part of it, together constitute a per- fect contract, the terms of which cannot be varied by parol proof. Mallory v. Tioga E. R. Co., 3 Abb. App. Dec. 139. Contracts in a statute provision requiring that contracts made by banks, and all bills and notes by them issued and put in circu- lation as money, shall be signed by the president or vice-president and cashier, should be construed in a limited sense, and does not include indorsement of a note. Allison !). Hubbell, 17 Ind. 559; Jones u. Hawkins, Id. 650. Marriage, in Indiana, is a civil contract, embraced in a provision declaring con- tracts made with negroes void. Barkshire V. State, 7 Ind. 389 ; but compare Noel o. Ewmg, 9 Id. 37. Enlistments into the army, made under the inducements held out by the laws of the United States, are contracts ; and, although the government be a party, still the con- tracts ought to be construed according to those well-established principles which reg- ulate contracts generally. 6 Op.Att.-Gen. 187. A notice printed at the head of each page of a hotel register, requiring money, jewelry, and valuables to be placed in the safe in the office, otherwise the proprietor will not be responsible for any loss, is not a contract, — at least without proof that the guest's attention was called to it, and he signed his name with intent to be bound by it. Eamaley v. Leland, 6 Robt. 358. Passenger tickets, issued by carriers, which do not purport to be contracts, are rather to be regarded as receipts for pas- sage-money, and intended to serve as tokens, than as contracts; and are not within the rule excluding parol evidence to vary a written agreement. Quimby v. Van- derbilt, 17 N. Y. 306. A receipt for towage, delivered before performing the work to the owner of the vessel towed, which contains a clause that the towing is to be done " at the risk of the owner or master of the vessel towed," con- stitutes a complete contract, not a mere re- ceipt. Milton V. Hudson River Steamboat Co., 4 Lans. 76. A forwarder's written acknowledgment of the receipt of goods from one person, on CONTRARY 282 CONTROVERSY account of another, to be forwarded, is a contract with the latter person, not a mere receipt for the goods. Niles v. Culver, 8 Barb. 205. A receipt, such as is ordinarily issued by an express company, is not rendered a eon- tract 60 as to require a five-cent stamp, under the internal revenue laws, merely by the fact that it contains a notice of the terms upon which the company are willing to undertake the transportation. De Barre d. Livingston, 48 Barb. 511. A due bill payable in merchandise was held a contract requiring a stamp. United States V. Learned, 1 Abb. U. S. 483. A pawnbroker's ticket, issued in compli- ance with a statute requiring such a ticket to contain "the particulars of the con- tract," is a contract requiring a stamp, under an act of congress prescribing stamps upon any agreement or contract. United States V, Smith, 1 Sawyer, 192. Contractor. The primary meaning of the word is, one who contracts ; one of the parties to a bargain. He who agrees to do any thing for another is a contractor. Kent V. N. Y. Central E. R. Co., 12 N. Y. 628. But it may include sub-contractors. Warner v. Hudson Eiver E. R. Co., 5 How. Pr. 454 ; Mundt v. Sheboygan, &c. R. E. Co., 31 Wis. 451. CONTRARY. A verdict contrary to law is not merely one that is defective or insufScient in law. A verdict may be de- fective and insufficient in the law, and yet not be contrary thereto. A verdict wluch is contrary to law is one which is contrary to the principles of law as applied to the facts which the jury were called upon to try, — contrary to the principles of law which should govern the cause. Bosseker V. Cramer, 18 Ind. 44. CONTRIBUTE. To furnish one's share towards money or supplies neces- sary to meet an obligation or prosecute an enterprise of himself and others . Con- tribution: the share due from or pro- vided by one of several persons to assist in discharging a common obligation, or advancing a common enterprise. Con- tributor: one who provides a portion of what is required for the discharge of an obligation or prosecution of an enter- prise by himself and others. Contribu- toiy, n. : one who is liable to be required to contribute towards the discharge of a common indebtedness. Contribution arises in various cases: where one of several joint debtors has paid the whole debt ; where one of sev- eral sureties has paid the sum for which the principal was bound ; where one leg- atee or distributee has been compelled to provide for payment of debts of the decedent which were equally chargeable on others ; where a settlement of part- nership affairs shows that one partner has paid more than his share towards the firm debts ; where a corporation be- comes insolvent, and recourse to the private property of shareholders is nec- essary; where jettison is made of goods on board ship to save vessel and cargo, and the loss ought in justice to be shared. In many cases like these the party who has at first borne the loss may require others equally liable with him to contribute towards reimbursing him. As this doctrine does not rest upon express contract, but upon natural jus- tice and equity, it was at first chiefly a branch of equity jurisprudence; but the principles have to a considerable extent been adopted by and are enforced in courts of law. It is a maxim that there is no contri- bution among tortfeasors. One who has been made to pay damages for a wilful wrong, cannot, in general, claim any reimbursement from persons who may have co-operated with him in it. CONTRIBUTIVE, or CONTRIBU- TORY. When an injury is attributa- ble in part to the negligence of a wrong- doer and in part to the negligence of the sufferer, the rule of common-law courts is that the sufferer cannot recover dam- ages ; and his negligence, when thus set up in defence of his action, is called contributive or contributory negligence. The meaning is, negligence of the suf- ferer, which contributes to his injury. CONTROLLER, or COMPTROL- LER. An overseer of accounts; an of- ficer charged with revising and verify- ing the accounts of others; one who keeps a counter register of accounts. Burrill explains that the word is not derived from compte, or accompt, an ac- count, but from conire, against, and rotu- lator, or rouleur, an enroller; making its true signification to be the keeper of a counter roll. Hence the spelling con- troller is preferable. CONTROVERSY. The constitution of the United States declares that the judicial power shall extend to all con- troversies between, &c. It is consid- CONTUMACY 283 CONVERSIOjST ered that in this connection controversy is in one respect narrower in meaning than case ; for it includes only civil dis- putes, while case includes criminal pro- ceedings. See Case ; also, Curt. Jur. §• Pr. of U. S. Courts, 85; Story Const. § 1668; 2 Ball. 419. In another aspect, controversy is broader in meaning: it regards the substance of the dispute or question at issue, while case suggests the mode of bringing it to the courts for decision. ControTersy may include an action regu- larly commenced and at issue. Sands v. Harvey, 4 Abb. App. Dec. 147. CONTUMACY. Contempt of court ; disobedience to an order or citation from a court. Used chiefly of ecclesias- tical tribunals. OONVENTIO. In old English law, and in the civil law, means an agree- ment, as in the following maxims : Conventio privatorum non potest publico juri derogare. The agree- ment of individuals cannot derogate from public right. Conventio vincit legem. ,The ex- press agreement of parties overcomes the law. CONVENTION. 1. A somewhat general term, inclusive of agreements, compacts, and mutual engagements of various kinds ; chiefly used, however, of those entered into between sovereign powers; as the postal conventions be- tween the United States and foreign nations. 2. The name of an old writ that lay for the breach of a covenant. ■ 3. A meeting of delegates elected for other purposes than ordinary legislation ; as, a convention to prepare a constitution. 4. In extraordinary emergencies in English history, when a royal summons to parliament to meet was not possible, the lords and commons have assembled as by their own inherent authority. Parliaments thus convened have been called convention parliaments. Thus, in the year 1660 the convention parlia^ ment met, which restored King Charles the Second; and in 1688 the lords and commons met to dispose of the crown and kingdom in favor of the Prince of Orange. 1 Bl. Com. 151, 152; 2 Steph. Com. 456. CONVENTIONAL. Agreed upon; founded on consent; something which derives validity from actual assent of parties, as distinguished from that which is imposed by law. CONVERSION. 1. A transmuta- tion or interchange of one kind of property for another, as of lands into money. In this sense the term is chiefly used of a theoretic or hypothetical substitu- tion of property for money, or vice versa, to which courts of equity resort, when necessary for doing justice in the divi- sion or administration of property. Thus, if lands are by wiU directed to be sold for the purpose of a division of pro- ceeds, or if money is left to be invested in land, equity will often treat the change as having been made, and deter- mine the title, as if the sale or purchase had.been completed, although it has not been. This is known as the doctrine of equitable conversion. Suppose, for ex- ample, land is directed by a wiU to be sold and the price divided among the testa- tor's children, and one of these chil- dren dies before the sale is made ; then, if strict rules of law are applied, that child's share, being still land, must de- scend ; but by the doctrine of equitable conversion, treating the land as con- verted into money from the date when the will takes effect, the share may go to the administrator, to be disposed of as personal assets. 2. A wrong; consisting in dealing with the property of another, as if it were one's own without right. Conversion imports an unlawful act, not a mere nonfeasance. BowUu ». Nye, 10 Cush. 416. Conversion includes an unlawful taking of goods out of the possession of the owner ; the using a thing, without the license of the owner, and a wrongful sale of it. Clarfc V. Whltaker, 19 Conn. 319. Assuming to one's self the property and right of disposing of another man's goods, is a conversion. The fact that defendant comes lawfully into possession, forms no objection to the action. It is the breach of the trust, or the abuse of such lawful pos- session, which constitutes the conversion. Murray v. Burling, 10 .Johns. 172. To constitute a conversion, it is not nec- essary to show a manual taking of the thing in question, nor that the defendant has applied it to his own use ; but the as- suming a right to dispose of it, or exercising CONVEY 284 CONVEY a dominion over it, to the exclusion or in defiance of the plaintiff's right, is a conver- sion. Bristol V. Burt, 7 Johns. 254 ; Murray V. Burling, 10 Id. 172 ; Reynolds v Shuler, 5 Cow. 323; Connah v. Hale, 23 Wend. 462. One who, being lawfully in possession, wrongfully parts with the possession to the injury of the owner, is liable in trover for a conversion. Spencer v. Blackman, 9 Wend. 167. CONVEY. To transfer property; more strictly and usually, to transmit real property, or pass the title thereto, by a sealed writing. Conveyance: the transaction of passing the title'to prop- erty, usually real property ; also, the in- strument or deed in wi'iting by which this is done. Conveyances of property of every de- scription were no doubt originally made by mere delivery of the property ; actual delivery, whenever the property was ca- pable of it ; and symbolical delivery, in other cases. In the various formalities used as modes of conveyance among the Romans, the delivery is always the essential, and often the only, requisite. By the Saxons, among whom convey- ance of lands by deliyering the posses- sion, or some symbol of the possession, was anciently practised, conveyance by writing was also used; and, probably on account of the convenience of the writ- ing as an evidence and record of the transaction, vsrritten conveyances in various forms were adopted and con- tinue to be used in England and the United States as the usual and proper method of transferring title to real prop- erty, and the best evidence of such transfers, excepting, of course, cases where title passes by descent or opera- tion of law. In the early modes of conveyance in England, a purchaser of lands was put into actual possession by entering upon the land, or by some equivalent act, no writing being necessary, in such cases, to pass the title ; which mode of trans- fer was termed "livery of seisin." But conveyances of incorporeal things, which could not be made by any such overt act of possession, were effected by deed, evidencing the transfer ; and this method was termed "grant." As all convey- ances were either by livery of seisin or by grant, according to the nature of the property or interest conveyed, these terms were used to distinguish corporeal from incorporeal hereditaments; the former were said to " lie in livery," the latter to " lie in grant." When written conveyances came into use in aU cases, a conveyance of a corporeal heredita- ment was technically termed a feoff- ment, the name grant continuing to be applied to conveyances of incorporeal hereditaments. This distinction con- tinued to be observed in English con- veyancing until the Stat. 8 & 9 Vict, ch. 106, § 2, since which all corporeal hereditaments, so far as regards the con- veyance of the immediate freehold there- of, are deemed to lie in grant as well as in livery; and grant is now the ordi- nary form of conveyance of lands in England. The conveyance by feoffment, however, was practically disused after the passage of the statute of uses. Many other forms of conveyance were and still are in use, adapted to the cir- cumstances of particular classes of trans- actions, such as gifts, partitions, ex- changes, defeasances, &c. Others were adopted in consequence of the opera- tion of the statute of uses, of which bargain and sale (q. w.) is an illustra- tion. Blackstone enumerates (2 Com. 309), as conveyances by the common law, feoffment, gift, grant, lease, ex- change, and partition, as original or primary conveyances ; and, as derivative or secondary conveyances, release, con- firmation, surrender, assignment, and defeasance. The conveyances which he mentions as deriving their force from the statute of uses are, covenant to stand seised to uses, bargain and sale, lease and release, deed to lead and de- clare uses, and deed of revocation of uses. Of the last class, the conveyance by bargain and sale was the most fre- quently used. The definitions of these various conveyances maybe found under the particular words or phrases by which they are designated; see also Deed. In the United States, the statutes of frauds, which have been generally enact- ed, make an instrument in •writing nec- essary to convey lands or any interest therein. And in most of the states, a writing under the hand and seal of the grantor is required by statute for the transfer of a freehold interest in lands. CONVEY 285 CONVICT The forms of conveyance are also pre- scribed by statutes in many states; but such statutes ai-e generally deemed di- rectory only, not mandatory; and the common-law modes are usually recog- nized as familiar and effectual forms of conveyance. Thus, in Massachusetts, the conveyance in common use is a modified form of the ancient feoffment; but the statutes recognize bargain and sale, or other like conveyance, and de- clare that a deed of quitclaim and re- lease of the form in common use shall be sufficient to pass all the estate which the grantor could lawfully convey by deed of bargain and sale. Like provi- sions exist in the statutes of Connecticut and several other states in regard to deeds of quitclaim. Conveyance by bargain and sale, however, is the mode commonly practised in the United States. Even in New York, where grant is the only form of conveyance authorized by statute, and where feoff- ments, with livery of seisin, as a mode of conveying lands, are expressly abol- ished, conveyances by bargain and sale, ■ and by lease and release, are allowed to be used, and are deemed to be grants. To convey real estate is, hy an appro- priate instrument, to transfer the legal title to it from the present owner to another, Abendroth v. Town of Greenwich, 29 Conn. 356. Convey, in a deed, is equivalent to grant,- and passes the title. Patterson v. Carneal, 3 A. K. Marsh. 618. Convey relates properly to the disposition of real property, not to personal. Dicker- man V. Abrahams, 21 Barb. 551, 561. Convey does not imply a consideration. Spicer v. Norton, 13 Barb. 542. In construing agreements to convey, it has been held that one who has agreed to convey does not show performance by prov- ing tender of a deed, but he must show that lie had a title to it at the time, so that his deed would have conveyed the property, Abendroth v. Greenwich, 29 Conn. 356; Lawrence v. Dole, 11 Vt. 549; that where one agrees to convey by quitclaim deed, this has reference to the title as it was at the time of the agreement ; not to one sub- sequently acquired, Woodcock v. Bennet, 1 Cow. 711; that an agreement to convey in fee-simple is satisfied by a deed without covenants, Puller v. Hubbard, 6 Id. 13 ; that an agreement to convey generally is an agreement to convey free from incum- brances. Matter of Hunter, 1 Edw. 1. A statutory power to convey ought, on the principle that the greater includes the less, to be construed as implying a power to 1 mortgage. Pickett v. Buekner, 45 Miss. 226, 246. Conveyance may include leases. Jones n,,y. V. Marks, 47 Col. 242. / "^ May include mortgages. Odd Pellows Savings Bank v. Banton, 46 Cal. 603; Bab- cock V. Hoey, 11 Iowa, 375. That conveyance imports an instrument under seal, see Livermore v. Bagley, 3 Mass. 487. The lien of a judgment is not a convey- ance, within the meaning of the California registry act. "Wilcoxson o. Miller, 49 Cdl. 193. Conveyance includes every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity, ex- cept last wills and testaments, leases for a term not exceeding three years, and execu- tory contracts for the sale or purchase of lands. 1 N. Y. Rev. Stat. 762, § 38 ; 2 Id. 137, §7. Where a reservation was made in an agreement "for the use of all the water from the spring, the same as it has been formerly conveyed for the use of the paper- mill," it was held that " conveyed " referred to the conveyance of water in the pipes, and not the conveyance of the right. Even if it were a term of art, it could not be received in its technical sense where water was the subject-matter spoken of. Edelman v. Yea- kel, 27 Fa. St. 26. An indictment charging that the defend- ant "furnished B," who was confined in jail, with certain instruments to aid his es- cape, is not good under a statute which pro- hibits " conveying " into any jail, arms, &c. Praneis v. State, 21 Tex. 280. Conveyancer. One whose business it is to draw deeds, bonds, mortgages, wills, writs, or other legal papers, or to examine titles to real estate. Act of July 13, 1866, § 9, 14 Stat, at L. 118. He who draws conveyances ; especially a barrister who confines himself to drawing conveyances, and other chamber practice. Mozley ^ W. Conveyancing. That branch of law which treats of the transfers of property, particularly of realty. CONVICT, !). To condemn for crime ; i to find guilty of an offence. Convict, n. : ^'^(C- a person who has been found guilty of ^"^'V an offence by verdict of a jury or other decision of a tribunal authorized to as- certain guilt for the purpose of inflict- ing punishment. Convicted: legally as- certained to be guilty. Conviction: the act or proceeding of pronouncing a per- son guilty of an offence and punishable therefor. Conviction is sometimes applied to the record of the summary proceedings had CONVICT 286 COPARCENARY before a magistrate or justices authorized thereto, resulting in the conviction and sentence of an offender. Such convic- tion, or, more properly, record of convic- tion, should show a charge or complaint; a summons, notice, arrest, &c., giving him opportunity to defend ; his appear- ance, either his plea of guilty or compe- tent evidence against him; and, lastly, the judgment or sentence. Conviction is an adjudication that the accused Is guilty. It involves not only the corpus delicti, and the probable guilt of the accused, but his actual guilt. Nason v. Staples, 48 Me. 123. Conviction does not necessarily imply a judgment. Shepherd v. People, 24 How. Pr. 38. The ordinary legal meaning of convic- tion, when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and pub- lishes the fact of his guilt ; while judgment or sentence is the appropriate word to de- note the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained. A pardon granted after verdict of guilty, but before sentence, and pending a hearing upon exceptions taken by the accused dur- ing the trial, is granted after conviction, within the meaning of a constitutional re- striction upon granting pardon before con- viction. When, indeed, the word conviction is used to describe the effect of the guilt of the accused as judicially proved in one case, when pleaded or given in evidence in an- other, it is sometimes used in a more com- prehensive sense, including the judgment of the court upon the verdict or confession of guilt ; as, for instance, in speaking of the plea of autrefois convict, or of the effect of guilt, judicially ascertained, as a disqualifi- cation of the convict. Commonwealth v. Lockwood, 109 Mass. 323; see Howard v. Packard, 17 Pick. 380. Conviction, as used in Gen. Stat. ch. 131, § 13, — allowing the conviction of any crime to be shown to affect the credibility of a witness, — implies a judgment of court. Proof of an indictment and plea of guilty, not yet followed by a judgment, is not enough. The terra conviction is most com- monly used to signify a jury's verdict of guilty ; but, in the statute in question, and some other instances, it signifies judgment and sentence, upon a verdict or confession. Commonwealth v. Gorham, 99 Mass. 420. The phrase, convicted of crime, as used in a statute declaring certain persons inca- pacitated from holding office and giving tes- timony, cannot properly be applied to a person until after rendition of judgment against him on a verdict of guilty. Faunce V. People, 61 /«. 311. Under a statute that an attorney shall be struck from the roll, "on conviction," &c., it was held that proof made that one had passed counterfeit notes, knowing them to be such, and that, being indicted therefor, and confined in jail, he escaped therefrom, did not warrant Ins being struck off. State V. Foreman, 3 Mo. 602. CONVOCATION. An assembly of all the clergy of England, to consult of ecclesiastical matters, held in time of parliament, one in each of the provinces of Canterbury and York. In the former province, convocation is composed of two houses, the archbishop and bishops sit- ting in the upper, and the deans, arch- deacons, and proctors representing the inferior clergy in the lower. In the province of York, convocation consists of one house only; or, rather, the two houses do not sit separately. Since the reign of Henry VIII., convocations can make no canons, or even confer for that purpose, without license from the sov- ereign; nor can they make any repug- nant to the common or statute law; and none of their canons bind the laity, unless they pass both houses of parliament. In later times, convocations have been sel- dom summoned, and then only pro forma, their meeting being followed by an im- mediate adjournment. They are now summoned with each parliament, but merely to consult of ecclesiastical mat- ters. COPARCENARY. An estate which arises when lands of inheritance descend to two or more persons as one heir. Co- parceners: persons who hold an estate in coparcenary. Coparcenary arises only by descent. By the common law, where a person seised in fee-simple or fee-tail dies intes- tate, leaving two or more females as his next co-heiresses, — e.g. his daughters, sisters, aunts, cousins, or their represent- atives, — such females are deemed one heir, the law of primogeniture not ob- taining between females in equal rela- tionship to the ancestor; they all inherit, and their estate is a coparcenary. An estate of the same nature arises where, by a particular custom, as gavelkind, lands descend to two or more males in equal degree; e.g., to the sons, broth- era, or uncles of the deceased intestate. In coparcenary there is a unity, COPULATJO 287 COPYHOLD though not an entirety, or necessarily an equality, of interest. There is no right of survivorship. On the death of one of two coparceners intestate, her moiety descends (subject to curtesy, if any) to her heir-at-law, although a male and a collateral; and the tenant by the curtesy, or the heir-at-law, will hold their estates by coparcenary with the surviving parcener. So long as it passes by descent, the estate continues to be coparcenary; but, as soon as any part is severed by conveyance from one or more of the coparceners, that part is held in common between the alienee and the re- maining coparceners, who, as between themselves, continue to hold in coparce- nary. Coparcenary is intermediate between joint tenancy and tenancy in common. It resembles joint tenancy in the unity of title and similarity of interest, but differs in that it relates to the estate, ■while joint tenancy relates to the per- sons. Joint tenants always claim by act of the parties; coparceners always by descent. Thus, if sisters purchase an estate, to hold to them and their heirs, they are joint tenants, not coparceners. The right of survivorship also in joint tenancies has no application to estates in coparcenary. Again, one joint tenant can convey his interest to another by re- lease, but not by feoffment, each being equally seised of the whole, while tenants in common may convey to one another by feoffment, but not by mere release ; but coparceners may use either form in conveying their interests one to another. As to partition of estates in coparcenary, see Enitia Pars ; Partitioh. In the United States, tenancy in co- parcenaiy rarely arises under the stat- utes of descents in the various states, or is not distinguished from tenancy in common. By the Virginia statute of descents, the estate was recognized, and the term coparceners applied to males as well as females. Copulatio verborum indicat ac- ceptationem in eodem sensu. The coupling together of words shows that they are to be understood in the same sense. The meaning of a word may be ascer- tained by reference to the meaning of the same word in a similar connection, or of other words associated with it. Where an expression, whether a phrase or a single word, occurring in a deed or other instrument, is ambiguous, or the meaning obscure, the meaning and in- tention may be ascertained by referring to the same expression used elsewhere in the same instrument, where the mean- ing is clear and free of ambiguity; the conjunction or juxtaposition leads to the inference that the word or phrase was intended to have the same interpre- tation. And where the meaning of any particular word is doubtful or obscure, or where a particular expression when taken singly is inoperative, the inten- tion of the party using it may frequently be ascertained and carried into effect by looking at adjoining words, or at ex- pressions occurring in other parts of the same instrument. Broom Max. 588. COPY, V. To reproduce or transcribe written or printed language, or a design, device, picture, or work of art. Copy, n. . a reproduction or transcript of language, written or printed, or of a design, device, picture, or work of art. As respects documents, examined copies are those which have been compared with the originals ; exemplified copies are those which are attested under seal of a court; and certified or office copies are those which are made and attested by officers having charge of the originals, and au- thorized to give copies officially. A copy of a book is understood to be a transcript of the language In which the con- ceptions of the author are clothed ; of some- thing printed and embodied in a tangible shape. The same conceptions, clothed in another language, cannot constitute the same composition. Hence a translation is not, in any just sense, a copy or transcript of a book. Stowe v. Thomas, 2 Wall. Jr. 547 ; 2 Am. Law Reg. 229. Under a statute imposing penalty for printing any copy of a hook, an action will not lie for printing a portion, although so much as to amount to an infringement of its copyright. The words any copy, as used In such statute, must be construed to mean a transcript of the entire work. Rogers v. Jewett, 12 Mo. Law Rep. s. s. 339. COPYHOLD. A tenure by copy of court-roU, at the wiU of the lord of the manor, according to the custom of the manor. A species of estate at will in England, being a holding at the will COPYHIGHT 288 COPYRIGHT of the lord, according to certain particu- lar customs of each manor, which cus- toms wei'e preserved and evidenced by the rolls of the several courts-baron in which they were entered. It is villenage tenure divested of its servile incidents. The term is also used in a general sense to include every customary tenure in England, as distinguished from freehold. Copyhold does not exist, and the doc- trine has no application in the United States. Copyholders were originally villeins or slaves, permitted by the lord, as an act of pure grace or favor, to enjoy the lands . at his pleasure ; being in general bound to the performance of agricultural services, such as ploughing the lord's demesne, cart- ing the manure, and other servile works. The will of the lord originated the custom of the manor, and came at last to be con- trolled by it. Mozley Sj- W. COPYRIGHT. Authority to con- trol the publication of a literary work, assured by law to the author or pro- prietor, in return for the advantage de- rived by the community from its publi- cation. Copyright is quite distinct from liter- ary property. Keene v. Wheatly, 9 Am. Law Reg. n.s. 44. Upon general princi- ples of law, the time, labor, and skiU em- ployed in embodying thoughts in a manuscript are recognized as creating a property, just as really as that bestowed in any other skilled manufacture. An author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or who, by obtaining a copy, endeavors to realize a profit by its publication. Wheaton v. Peters, 8 Pet. 591, 656; Little V. Hall, 18 How. 165; Keene v. Wheatley, 9 Am. Law Reg. 33 ; Bartlette V. Crittenden, 4 McLean, 300; Bartlett V. Crittenden, 5 Id. 32; 7 West. Law J. 49; Crowe ii. Aitken, 2 Biss. 208. So, also, the author of letters or papers of whatever kind, whether they be letters of business or private letters, or literary compositions, has a property and ex- clusive right therein, unless he unequivo- cally dedicates them to the public or to some private person ; and no person has any right to publish them without his consent, unless when such publication is required to establish a personal right or claim, or to vindicate character. Folsom V. Marsh, 2 Story C. Ct. 100; United States V. Tanner, 6 McLean, 128; Bart- lett V. Crittenden, 5 Id. 32; 7 West. Law J. 49. And this common-law right of literary property has a broad protection in the United States, by Rev. Stat. § 4966, providing that every person who shall print or publish any manu- script whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resident therein, shall be liable to the author or proprietor for a}l damages occasioned by such in- jury- But the application of the ordinary principles of the law of property to artistic and literary works is not suffi- cient for the encouragement of artists and writers, owing to the fact that any extended profit or advantage from the labor bestowed upon them is only to be derived through the printing and pub- lishing of multiplied copies of the work, and this operates, if the ordinary princi- ples of the law of property are to be ap- plied without modification, as a gift or abajudonment of the work to the public ; for in respect to the results of labor gen- erally, while it is true that the law pro- tects the original producer in his owner- ship, so long as he continues to hold his exclusive right, yet it is also true, that, if he once deliberately abandons, dedicates, or parts with that right, he cannot again reclaim it. To remedy this deficiency, the laws of the United States, as also those of Great Britain and other countries, provide that upon publishing his work, and upon complying with certain statutory condi- tions, such as making public record of the title, furnishing copies, &c., the author, artist, dramatist, &c., or other proprietor, shall enjoy, for a limited term, the sole right of publishing; shall have the monopoly of making copies. This is his copyi-ight. Keene v. Wheat- ley, 9 Am. Law Reg. n. s. 44; Stowe V. Thomas, 2 Wall. Jr. 547; 2 Am. Law Reg. N. 8. 229. In other words, literary property is the common-law ownership of the origi- nal work.; copyright is the statutory right to make all the copies of it that COPYRIGHT 289 COKODY shall be made for a term of years. For the statutes creating and regulating the right in the United States, see Kev. Stat. § 4948. In early books, copy is used in the sense of copyright; thus Lord MansjSeld, in Millar h. Taylor (Burr. 2303, 2396), speaking of what is now called copyright, defined copy to be "an incorporeal right to the sole printing and publishing of somewhat intellectual communicated by letters; " and observed that this was the technical sense in which the term had been used for ages. He also ruled that the property in the copy is an incorpo- real right to print a set of intellectual ideas or modes of thinking, communi- cated in a set of words and sentences, and modes of expression. See also Jef- freys V. Boosey, 4 Ho. of L. Cos. 815. In England, copyright in books ia chiefly regulated by Stat. 5 & 6 Viot. ch. 45, passed in the year 1842, which provides that the copyright of a book shall endure for the life of the author, and for seven years longer, and for not less than forty-two years from the first publication. But the right of property in copyright must be reg- istered in the registry of the Stationers' Company ; and, after such registry, it is as- signable by a mere entry of the transfer in the same registry In the manner prescribed by the act. Copyrights in sculptures and designs have also been protected by various acts of parliament, of which the most re- cent are the copj'right of designs act, 1858 (21 & 22 Vict. ch. 70), for the protection of designs for articles of ornament and utility, and the act of 1862 (25 & 26 Vict. ch. 68), for the protection of paintings, drawings, and photographs. International copyright is provided for by the 7 & 8 Vict. ch. 12 ; but the provisions of that statute only go to secure to the authors of books published abroad the right of copyright when the same are republished in her majesty's do- minions, and do not of course oblige foreign countries to extend to British authors the like protection. Brown ; Moden §• W. Copyright is the exclusive right of the owner of an intellectual production to mul- tiply and dispose of copies ; the sole right to the copy, or to copy it. The word is used indifferently to signify the statutory and the common-law right ; or one right is sometimes called copyright after publica- tion, or statutory copyright; the other copyright before publication, or common- law copyright. The word is also used synonymously with literary property ; thus, the exclusive right of the owner publicly to read or exhibit a work, is often called copyright. This is not strictly correct. Drone, Copyright, 100. VOL. I. 19 CORAM. Before ; in the presence of. Coram ipso rege. Before the king himself. Coram nobis. Before us. Coram vobis. Before you. These two Latin phrases are applied, respectively, to a writ of error allowed to review pro- ceedings had in the same court, and to- one issued to bring up a record of what has been done in an inferior court for revision. In the latter use of the vnit, which is the most common, its substan- tial direction, addressed to the court below, is a requirement to certify up the proceedings or record ' ' before you. ' ' Conversely, if the object of the writ is to review proceedings in the same court, as is sometimes allowed, they are al- luded to as had " before us." Coram non judioe. Before one not a judge. Any proceedings before a judge or tribunal not clothed with juris- diction of them are said to have been done coram non judice ; before one who was no judge. He may have been a judge for other causes; the expression does not imply an intruder into the ofiice; but if he had not the proper jurisdiction to authorize the acts in question, he is, as to those, not a judge. CORD. Usage has defined a cord of wood to mean 128 cubic feet, and a contract for sale of wood by the cord calls for this quantity. Kennedy v. Oswego, &c. R. E. Co., 67 Barb. (N. Y.) 169. CORN. In the English usage, in- cludes grain, generally; the various farinaceous seeds which grow in ears, and are used for food. In the United States, it commonly signifies maize only. This is because the early settlers in America found maize cultivated by the Indians, and, being unfamiliar with it, they gave it the name Indian corn. Corn, as used in this country in statutes of a modern date, is by custom applied to maize or Indian corn only, and not to other kinds of grain. Commonwealth v. Pine, 2 Pa. L. J. R. 154. Corn, in the Ala. act of 1875, prohibit- ing the severance and exportation of " com," &c., is to be taken in the popular accepta- tion, and not technically. Sullins v. State, 53 Ala. 474. Corn la-ws. A former system of legis- lation in England, laying duties on im- portation of various kinds of grain. CORODY. A provision or support. CORONATION 290 CORPORATION CORONATION OATH. The oath administered to a sovereign of England, before coronation. By it the king or queen swears, in substance, to govern the kingdom of England, and the domin- ions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same; to cause law and justice in mercy to be executed ; to maintain the laws of God, the true pro- fession of the gospel, and the Protestant reformed religion established by law, and to preserve unto the bishops and clergy of the realm, and to the churches com- initted to their charge, all such rights and privileges as bylaw appertain to them, or any of them. For the full form, in ques- tions and answers, see Wharton. CORONER. The name of an officer of great antiquity in England, whose powers and duties at the common law have been but little affected by statutes. The office is principally of a judicial character. The most important func- tion of the coroner is the making in- quiry concerning the manner of the death of any person who is slain, or dies suddenly, or in prison. Another branch of his office is to inquire concerning shipwrecks, and certify whether wreck or not, and who is in possession of the goods. Concerning treasure trove, he is also to inquire who were the finders, and where it is. The coroner is also a con- servator of the peace, and a magistrate by virtue of his appointment. He also acts as a substitute for the sheriff, when special circumstances render substitution necessary, and may then serve process in place of the sheriff. The office is, in gen- eral, a county office ; but several coroners are frequently appointed for the same county. CORPORAL. Relating to the body ; bodily. Should be distinguished from corporeal, q. v. Corporal oath. An oath taken by the party laying his hand upon the gos- pels while the oath is administered to him. More generally a solemn oath. The terms corporal oath and solemn oath are, in Indiana, at least, used synonymous- ly; and an oath taken with the uplifted hand may be properly described by either term. Jackson v. State, 1 Ind. 184. CORPORATION. A natural person, or body of persons, upon whom has been conferred a distinct legal existence con- tinued by succession, and certain char- acteristic powers possessed and exercised independent of any changes of members. These characteristics are, generally, power to admit and remove members, to act by a common seal; to purchase, hold, and dispose of property, real and personal; to sue and be sued; and to make by-laws. Corporate; that which appertains or relates to a corporation. Corporations have been called aggre- gate or sole, according as they consist of more than one natural person, or of one only. In early English usage, sole cor- porations, such as the king, the bishop, and the like, were of, perhaps, equal importance with the aggregate class; but in modern times, and especially in American books, the expression sole corporation has lost importance. They are called public or munici- pal (some of them qiiasi), when established to exercise functions of civil government, or accomplish purposes of purely public interest ; and private, when . they are created for advantage, benefit, or emolument of mdividuals. Recent decisions seem not to be agreed whether " corporation " without an adjective in- cludes both private and public bodies, or is presumably confined to private ones. A statute as to pleading non-ex- istence of corporations was held to in- clude municipal .corporations, such as cities, towns, and villages, as well as pri- vate corporations. Hixon v. George, 18 Kan. 253. Statutes extending garnish- ment and supplementary proceedings to persons, including corporations, have been held not to extend to municipals. Wallace v. Lawyer, 54 Ind. 501 ; Mem- phis V. Laski, 9 Heisk. 511. The con- text and general object must govern. By the original theory of incorpora- tion, individual members are not liable for corporate debts. The great increase, in modern times, of the number and variety of associations of persons formed for business enterprises has generated a necessity, on considerations of public ex- pediency, of preserving to some extent the principle of individual liability for debts incurred by an association: and this has been done in different ways CORPOEATION 291 CORPORATION in England and the United States, in- volving a somewhat different use of the term corporation. In the United States, the general tendency has been to use the term corporation freely for the various bodies chartered by the legislatures or organized under general acts, but to im- pose an individual liability by a specific enactment: the name corporation is used; but the full common-law exemp- tion of the individual members from the corporate debts is not given. In Eng- land, the tendency seems to have been to keep to the use of corporation in its original sense, implying non-liability of members; and, if this exemption is not to be accorded, to give the body some different name, "public company" be- ing the most common. In like manner, the general current of American decisions has been to the ef- fect that the word corporation embraces an association formed under general laws ; or, in other words, a body formed pursu- ant to a statute authorizing the formation of an " association " composed of stock- holders, and governed by president and directors, and declared by the statute to be, when duly formed, a body corporate and politic, and vested with enumerated powers, such as are usually incident to corporations. Such a body is not a quasi corporation, nor a joint-stock company, or limited partnership. Falconer v. Campbell, 2 McLean, 195. This ques- tion was the subject of much litigation in the courts of New York, in cases turning on provisions of the constitution of that state restricting the enactment of charters, and the provisions of law regulating corporations; and the final result of the conflicting cases has been to sustain, as respects most purposes, the proposition of the text. Consult Thomas V. Dakin, 22 Wend. 9 ; Warner v. Beers, 23 Id. 103; Parmley v. Tenth Ward Bank, 3 Edw. 395; People v. Assessors of Watertown, 1. Hill, 616; Bank of Watertown v. Assessors of Watertown, 25 Wend. 686; WiUoughby u. Comstock, 3 Hill, 389; People v. Supervisors of Niagara, 4 Id. 20, 7 Id. 304; Leavitt v. Yates, 4 Edw. 134; Leavitt «. Tylee, 1 Sandf. Ch. 207; Boisgerard v. New York Banking Co., 2 Id. 23; Matter of Bank of Dansville, 6 Hill, 370; Gifford 0. Livingston, 2 Den. 880; Case v. Me- chanics' Banking Association, 1 Sandf. 693; Leavitt v. Blatchford, 5 Barb. 9; Cuyler v. Sanford, 8 Id. 225; Gillet v. Moody, 3 N. Y. 479; Tahnage v. Pell, 7 Id. 328; Tracy v. Talmage, 18 Barh. 456; Gillet v. Phillips, 13 N. Y. 114; Leavitt v. Blatchford, 17 Id. 521 ; Codd V. Rathbone, 19 Id. 37 ; DeBow v. Peo- ple, 1 Den. 9 ; Purdy v. People, 4 Hill, 384; People v. Morris, 18 Wend. 325; People V. Purdy, 2 Hill, 39; Palmer v. Lawrence, 5 N. Y. 389. But it was held that an individual banker (under the New York act of 1838) is not a cor- poration; for there is no provision for succession; the heir or legatee may con- tinue his business (Laws of 1857, ch. 189), and the banker may sell the busi- ness (Laws of 1854, ch. 242) ; the busi- ness is his individual affair, and he may sue in relation to it in his individual name. Codd v. .Rathbone, 19 N.Y. 37; s. p. Hallet V. Hanower, 33 Barb. 537; see also Bank of Havana v. Magee, 20 N. Y. 355. Therefore, provisions rela- tive to any " moneyed corporation " do not apply to an individual banker. Cuy- ler V. Sanford, 8 Barb. 225. Corporations are sole or aggregate. An aggregate corporation, at common law, is a collection of individuals united into one collective body, under a special name, and possessing certain immunities, &c., which do not belong to the natural persons compos- ing it. A minister, seised of parsonage lands, in riglit of the parish, is a sole cor- poration for this purpose, and holds tEe same to himself and his successors. Bruns- wick tt. Dunning, 7 Mass. 447 ; Weston v. Hunt, 2 Id. 501. A corporation sole consists of a single person, who is made a body corporate and politic, in order to give him some legal ca- pacities and advantages, and especially that of perpetuity ; as a bishop, dean, &c. Bank of Havana v. Wickham, 7 Abb. Pr. 1.34 ; and see Overseers of Poor v. Sears, 22 Pick. 122. An aggregate corporation, at common law, is a collection of individuals, united into one collective body, under a special name, and possessing certain immunities, privileges, and capacities, in its collective character, which do not belong to the natu- ral persons composing it. It is an artificial person, existing in contemplation of law, and endowed with certain powers and fran- chises, which, though they must be exer- cised through the medium of its natural members, are yet considered as subsisting in the corporation itself, as distinctly as if it were a real personage. Dartmouth Col- lege V. Woodward, 4 Wheai. 518, 561. CORPORATION 292 CORPORATION An aggregate corporation is an artificial hody of men, composed of divers individ- uals ; the ligaments of which body are the franchises and liberties bestowed upon it, which bind and unite all into one, and in which consist the whole frame and essence of the corporation. Thomas v. Dakin, 22 Wend. 9, 70. It is a collection of individuals united in one body, under such a grant of privileges as secures a succession of members without changing the identity of the body, and con- stitutes the members for the time being one artificial person or legal being, capable of transacting some liind of business like a natural person. People v. Assessors of Watertown, 1 Bill, 616, 620. There are three cla'sses of corporations : public municipal corporations, the object of which is to promote the public interest; corporations technically private, but of a quasi public character, having in view some public enterprise in which the public inter- ests are involved, such as railroad, turn- pike, and canal companies ; and corpora- tions strictly private. Miners' Ditch Co. v. Zellerbach, 37 Cal. 543. A corporation founded by private benefi- cence, though for objects of general wel- fare, such as the education of young men, is a private and not a public corporation. Public corporations are generally esteemed such as exist for political purposes only, such as towns, cities, parishes, and counties ; and in many respects they are so, although they involve some private interest; but, strictly speaking, public corporations are such only as are founded by the govern- ment for public purposes, where the whole interests belong also to the government. If, therefore, the foundation be private, though under the charter of the govern- ment, the corporation is private, however extensive the uses may be to which it is de- voted, either by the bounty of the founder or the nature and objects of the institution. The uses may, in a certain sense, be called public, but the corporations are private, — as much so, indeed, as if the franchises were vested in a single person. Dartmouth College V. Woodward, 4 WhecU. 518, 562 ; Bundle v. Delaware & Raritan Canal, 1 Wall. Jr. 275. Public corporations are not those neces- sarily whose objects are of a public character, but those Created for politi- cal purposes, with powers to be exer- cised for the public good. Tinsman v. Belvidere, &c. R. E. Co., 26 A^. J. L. 148 ; Ten Eyck u. Delaware & Raritan Canal, 18 Id. 200. A public corporation is one that is cre- ated for political purposes, with political powers, to be exercised for purposes con- nected with the public good in the adminis- tration of civil government ; an instrument of the government, subject to the control of the legislature, and its members officers of the government, for the administration or discharge of public duties, as in the cases of cities, towns, &c. Regents v. "Williams, 9 Gill Sr J. 365. A corporation is private, as distinguished from public, unless the whole interest be- longs to the government, or the corporation is created for the administration of political or municipal power. Rundle v. Delaware & Raritan Canal, 1 Wall. Jr. 275. A bank whose stock is owned by private persons is a private corporation; and the legislature cannot control or alter the grant without consent of the corporators. Log- wood V. Huntsville Bank, Minor, 23 ; State V. Tombeekbee Bank, 2 Stew. 30. An incorporated academy is a private corporation, although it may derive a part of its support from the government. Cleve- land V. Stewart, 3 Ga. 283. Several state constitutions define corpo- ration thus : " The term corporation, as used in this article, shall be construed to include all associations and joint-stock com- panies having any of the powers and privi- leges of corporations not possessed by indi- viduals or partnerships." N. Y. Const, of 1846, art. 8, § 3; Cal. Const, of 1849, art. 4, § 33 ; Mich. Const, of 1850, art. 15, § 11 ; Kan. Const. o/1859, art. 12, § 6. Same provision, with the addition of the words "except such as embrace banking privileges." Minn. Const, of 1857-58, art. 10, § 1. A statute which prohibits corporations from interposing the defence of usury will be held to apply to foreign corporations litigating in the courts of the state making the enactment. Southern Life Ins. & Trust Co. V. Packer, 17 N. Y. 51. An English joint-stock company, organ- ized under an act of parliament which, though it stipulates that it does not incor- porate the company, and that the individual liability of members is preserved, yet grants powers of a corporate nature to the com- pany, — so that the company has a name as an association, continuing the identity of the body through all changes of members ; holds property divided in transferable shares ; enjoys the capacity to sue and be sued in the name of an oflScer, without lia- bility to abatement by reason of the death or resignation of the officer, or by change in membership, — may be taxed as a " for- eign corporation." Such bodies, indeed, are not pure corporations, but are interme- diate between corporations as known to the common law and ordinary partnerships. But when, by legislative authority or sanc- tion, an association is formed capable of acting independently of the rules and prin- _ciples that govern a simple partnership, it is so far clothed with corporate powers that it may be treated, for the purposes of taxa- tion, as an artificial body ; and becomes subject, as such, to the jurisdiction of the government, under which it undertakes to act and contract in its associated capacity. Oliver v. Liverpool, &c. Ins. Co., 100 Mass. 531, 10 WaU. 566. That the United States may be deemed CORPORATION 293 CORPORATION a corporation, see United States v. Hillegas, 3 Wash. 73. A state is a corporation. State of Indi- ana V. Woram, 6 Hill, 33. A state may sue as a corporation. Woodward v. Janes, 2 Johns. Cos. 417 ; Whitaker v. Cone, Id. 58 ; Hines v. State of North Carolina, 10 Smed. #• M. Ch. 529. A state is not embraced in the word cor- poration as used in a United States internal revenue law imposing a tax on corpora- tions. Georgia v. Atkins, 1 Abb. U. S. 22 ; 35 Ga. 315. That a county is a corporation, but the people of it are not, see Smith v. Myers, 15 Cal. 33. That a county is a public corporation, created for political purposes, and invested with subordinate legislative powers, see Maury County v. Lewis County, 1 Swan, 236. There is a distinction between proper aggregate corporations and the inhabitants of any district who are by statute invested with particular powers without their con- sent. These are called quasi corporations ; viz., counties, towns, parishes, school dis- tricts, &c. Reddle v. Proprietors of Locks, &e., 7 Mass. 187 ; School District in Rum- ford (J. Wood, 13 Id. 198 ; Damon v. Gran- by, 2 Pick. 352 ; Adams v. Wiscasset Banlc, 1 Me. 363 ; Mower v. Leicester, 9 Slass. 250. That counties are mere quasi corpora- tions, invested with corporate powers, sub modo, and for a few specified purposes, but deficient in many of the powers incident to the general character of corporations, see Goodnow V. Commissioners of Ramsey County, 11 Minn. 31 ; Louisville & Nasli- ville R. R. Co. v. County Court of David- son, 1 Sneed, 637, 687; Hannibal & St. Joseph R. R. Co. v. Marion County, 36 Mo. 294 ; Reardon v. St. Louis County, Id. 555. Towns are regarded as corporations so far as corporate powers are granted, or are incidental to express grants. North Hemp- stead ;; Hempstead, 2 Wend. 109; People <.. Morris, 13 Id. 325. In New Hampshire, the original proprie- tors of townships are regarded as corpora- tions, and are subject to the same general rules and regulations, and are invested with similar powers. Atkinson v. Bemis, 11 N. H. 44. A school district is a public, territorial corporation. Gilman v. Bassett, 33 Conn. 298; and see Williams v. Franklin Town- ship Academical Association, 26 Ind. 310 ; Whitmore u. Hogan, 22 Me. 564 ; Winspear V. Holman, 37 Iowa, 542. A school society is a corporation compe- tent to take a bequest, or devise, in trust, for educational purposes. First Congrega- tional Society of Southihgton v. Atwater, 23 Conn. 56, Tliat the trustees of a school district in Missouri are not a corporation, in such sense as to be liable to an action subjecting the school property to execution, see Allen V. Trustees of School District, 23 Mo. 418. That a board of school commissioners ia a public corporation, see School Commis- sioners V. Putnam, 44 Ala. 566. The board of supervisors of a county are not a corporation; and as such board, and apart from the county, they are not lia- ble to a suit. They can be sued only as representing the county. Boyce v. Super- visors of Cayuga, 20 Barb. 294. To simi- lar effect is Bradj' v. Supervisors of New York, 2 Sandf. 460. Compare Jansen v. Ostrander, 1 Cow. 670 ; that the supervisor of a town may be considered to be a corpora- tion, and to have the capacity of suing and being sued, in right of the office he holds, so far as his trust is concerned. Overseers of the poor, in New York, are a corporation, sub modo. Rouse v. Moore, 18 Johns. 407. In Mississippi, trustees of the poor are held to be a public corporation, and subject to the control of the legislature. Governor V. Gridley, 1 Miss. 328. The water commissioners of the city of New York, are not a corporation. Appleton V. Water Commissioners of New York, 2 Hill, 432. Boards of health, in New York, are not corporations, as respects the power to sue and be sued. Gardner «. Board of Health of New York, 10 N. Y. 409; People v. Supervisors of Monroe, 18 Barb. 567. Commissioners appointed for organizing an educational institution, and vested with certain powers preliminary to the exercise of corporate powers by the institution, were held not a corporation. Board of Commissioners for Frederick Female Semi- nary V. State, 9 Gill, 379. The general assembly of the Presby- terian church is not a corporation, nor a quasi corporation. Commonwealth v. Green, 4 Whart. 531. The treasurer of the trustees of David- son College is not a corporation sole. Mc- Dowell V. Hemphill, 1 Wins. L. Sf Eq. 96. Corporate authorities, as used in sec- tion 5 of article 9 of the Illinois constitu- tion, relating to municipal corporations, means those municipal officers who are either directly elected by tlie people to be taxed, or appointed in some mode to which they have given their assent. The phrase does not include commissioners appointed by the legislature to carry on some special improvement within the corporate limits. People V. Chicago, 51 III. 17 ; s. p. Gage v. Graham, 57 Id. 144. Corporate existence. As used in a statute dating the " corporate existence " of a corporation from the fihng of the articles with the secretary of state, means full au- thority to transact business. Hurt v. Salis- bury, 55 Mo. 310. Corporate purpose, embraces only such purposes as are germane to the objects of the creation of the municipality. These do not include that of securing the location of a state reform school. Livingston Coun- ty V. Welder, 64 III. 427. CORPOREAL 294 CORPUS The question, what is a corporation pur- pose within the constitutional provisions relating to the powers of municipal cor- porations, must be decided by the facts of each particular case; but the judgment of the local gorernment of such a corporation may in general be safely taken as prima facie evidence as to whether the object pro- posed is a legitimate " corporation purpose." It is not necessary that the object for which a tax is imposed by the corporate authori- ties should be withiti the corporate limits to make it a corporate purpose. It is suffi- cient if it be a matter of vital importance to the permanent interests of the corpora- tion, although situated beyond the limits thereof; and an appropriation may conse- quently be made to the construction of a part of a public work lying beyond the limits of the state. McCalUe v. Mayor, &c. of Chattanooga, 3 Head, 317. Corporation act. The Stat. 13 Car. II. st. 2, ch. 1, since repealed; which required that persons elected to office in any corporate town should have taken the sacrament within the previous year, and should take the oaths of allegiance and supremacy. CORPOREAL. Having a body; consisting of material substance; mate- rial. Coi-poreal is distinguished from cor- poral in that it is applied to express the inward and essential nature of a mate- rial substance, as corporeal body, cor- poreal hereditament; while corporal re- lates to the exterior, as corporal punish- ment, corporal touch. Or corporeal means that which has a body, is physi- cal; while corporal means that which affects some body. The distinction between things cor- poreal and incorporeal, in Roman law, rested upon the sense of touch; tangible objects only were' considered, corporeal. In modern law, all things which may be perceived by any of the bodily senses are termed corporeal; although a com- mon definition of the word includes merely that which can be touched and seen. Co. Litt. 9 a. The division of things into corporeal and incorporeal is coincident with the divi- sion of the Eoman law into tangible (quae tangi possunt) and intangible {quce tangi mm possunt). The nomenclature of the Eoman division is derived from the sense of touch, which was the most important of the senses in the opinions of the ancient Democritean school, or school of natural philosophy; the nomenclature of the English division is derived from the equally natural distinction of what is sensible to the body (or bodily senses) generally. In itself, the distinction, as resting in nature, is necessarily perma- nent ; in its consequences, it was cliiefly re- markable in the diversity which it occa- sioned in the mode of the transfer of prop- erty, for things which were corporeal were capable of manual or bodily transfer, e. g., by feoffment with livery, but things which were incorporeal were not capable of such a mode of transfer, and required for their transfer a deed of grant. Since the Stat. 8 & 9 Vict. ch. 106, § 2, the last-mentioned diversity has been mitigated, although not yet entirely removed, inasmuch as things corporeal are now capable of transfer by deed of grant, but things incorporeal are still (and must necessarily continue always to be) incapable of transfer by feoSment with livery. Brown. Corporeal hereditaments. Heredit- aments which are of a material nature, and may be perceived by the senses; material and permanent objects which may be inherited. The term land in- cludes all corporeal hereditaments. Corporeal possession of land, is a residence on or occupation or cultivation of the same. Dickson v. Marks, 10 La. Ann. 618. Corporeal property. Such as aSects the senses, and may be seen and handled by the body, as opposed to incorporeal property, which cannot be seen or handled, and exists only in contemplation. Thus a house is corporeal, but the annual rent payable for its occupation is incorporeal. Corporeal property is, if movable, capable of manual transfer; if immovable, possession of it may be delivered up. But incorporeal property cannot be so transferred, but some other means must be adopted for its trans- fer, of which the most usual is an instru- ment in writing. Mozley ^ W. In the civil law, corporeal property is that which consists of such subjects as are palpable. At common law, the term to signi- fy the same thing is " property in posses- sion." It differs from incorporeal property, which consists of choses in action and ease- ments. Bouvier. CORPUS. Body; the substance or whole of a thing. Corpus oomitatus. The body of a county. The county as a whole, as dis- tinguished from a part of it, or any par- ticular locality within it; or from the legal entity composed of the inhabitants. See Body. Corpus cum causa. See Habeas CORPUS CUM CAUSA. Corpus delicti. The body of the offence; the substance of a crime; the substantial and fundamental fact of the commission of a crime. The CORROBORATE 295 COST general nile is, that there can be no con- viction for crime unless the corpus de- licti is established; that is, until the fact that the crime has been actually perpetrated is proved. Thus, one ac- cused of homicide cannot be convicted unless the death be first distinctly proved. Corpus juris canonici. The body of the canon law. The collections of the decrees and canons of the Roman church, constituting the body of ecclesiastical law of that church, termed the canon law, q. V. Corpus juris civilis. The body of the civil law. The collection of the elements of Roman law, the opinions of eminent lawyers, and imperial constitu- tions, published in the reign of Justin- ian, and which constituted the body of civil law then existing. It is sometimes termed simply corpus juris. CORROBORATE. Is used, in_ a sense not materially different from its vernacular meaning, to denote the for- tifying of evidence by some matter likely to inspire increased confidence. It is generally applied where the evidence already adduced is, if believed, sufficient for the purpose, but is liable to some suspicion, to remove which the party must produce auxiliary evidence. Thus it is said that no conviction may be had for seduction on the uncorroborated tes- timony of the woman ; that testimony of an accomplice or of an impeached wit- ness needs corroboration. The expression corroborating circum- stances clearly does not mean facts which, independent of a confession, will warrant a conviction; for then the verdict would stand not on the confession, but upon those independent circumstances. To corroborate is to strengthen, to confirm by additional security, to add strength. The testimony of a witness is said to be corroborated when it is shown to correspond with the repre- sentation of some otlier witness, or to com- port witli some facts otherwise known or established. Corroborating circumstances, tiien, used in reference to a confession, are such as serve to strengtlien it, to render it more probable ; such, in short, as may serve to impress a jury with a belief in its truth. State V. Guild, 10 N. J. L. 163. CORRUPT. An act is said to be corrupt, or corruptly done, when the chief motive is a design to acquire or cause an advantage of a pecuniaiy na- ture; when it is done for an unlawful profit. Corruption, when applied to officers, trustees, &c., signifies inducing a violation of duty by means of pecuni- ary considerations. Corrupt does not convey a precise idea. What it does express, though still in a vague manner, is the quantity — what it endeavors, though unsuccessfully, to ex- press, is the quality — of the blame. 1 Benth. Ed. 351. Corrupt practices at elections have been the subject of several stringent en- actments of parliament. See Wharton. Corruptio optimi est pessima. The corruption of the best is the worst. Corruption of bloo.d. The destruc- tion of the inheritable quality in the blood of a person, the result of which is an incapacity to inherit or to transmit an inheritance to others. In England, this was formerly an immediate conse- quence of an attainder for treason or felony ; it was understood to cause a cor- ruption of blood, whereby an attainted person could neither inherit lands or other hereditaments from his ancestors, nor retain those he was already in pos- session of, nor transmit them by descent to any heir; but the same escheated to the lord of the fee, subject to the king's superior right of forfeiture ; and the per- son attainted also obstructed aU de- scents to his posterity, whereon they were obliged to derive a title through him to a remoter ancestor. But corrup- tion of blood has been practically abol- ished in England by various statutes modifying the common-law doctrine. And the constitution of the United States declares that "no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted." See Attain- der ; Bill or Attainder. CORTES. The name of the legisla- tive assemblies, the parliament or con- gress, of Spain and Portugal. COST. The cost of an article pur- chased at any particular place for the pur- pose of being exported is the price given, together with every charge which attended the purchase and the exportation, and which was paid, or is supposed to be paid, at the place whence the article is exported. Goodwin v. United States, 2 Wash. 493. Cost price is the price actually paid for the goods, not what they should have cost. An agreement by a merchant to deliver COSTS 296 COUNTER-CLAIM goods at cost price means the price they cost him, without reference to depreciation or actual market value at the time the goods are called for. Buck v. Burk, 18 N. Y. 337. COSTS. A pecuniary allowance, made by positive law, to the successful party in a suit or distinct proceeding within a suit, in consideration of and to reimburse his probable expenses.. The term includes only taxable costs, not attorney's fees. McDonald v. Page, -Wright, 121. An agreement to pay the «osts of a suit means only the legal costs. Wallace v. Coates, 1 Ashm. 110. " All the costs that have accrued," when the words are used iu the compromise of a pending suit, or in a private statute provid- ing for such compromise, mean costs that would follow the judgment, and do not in- clude attorney's fees. Tallassee Manuf. Co. V. Glenn, 50 Ala. 489. The word costs, when used in relation to the expenses of legal proceedings, signi- fies the £ums prescribed by law as charges for the services enumerated in the fee-bill. Apperson v. Mut. Benefit Life Ins. Co., 38 N.J. L. 388. A bond to indemnify a sheriff against "costs, charges, and expenses," which he should incur in defending a suit, does not extend to damages recovered against him. Scott «. Tyler, 14 Barb. 202. JThe phrase costs of suit includes com- missions of clerk of court and sheriff or marshal, upon money collected upon execu- tion. Kitchen v. Woodfin, 1 Hugh. 340. In the prosecution and defence of actions, the parties are necessarily put to certain expenses, or costs ; consisting of money paid to the king and government for fines and stamp duties ; to the officers of the courts ; and to the counsel and attorneys for their fees, &c. These costs may be considered either as between attorney and client, or as between party and party. In the latter case they are either interlocutory, or those given on various motions and proceedings in the course of a suit ; or final, to which the term of costs is most generally applied. Jacob. COUNCIL. This title is applied to an advisory body created by the laws of some of the states, to assist the governor in his determinations. It is also applied to the legislative body of a city; as the common council. COUNSEL; COUNSELLOR. The term commonly bestowed upon lawyers, throughout the United States, in respect of the capacity or function of advocating a cause in court; in distinction from the duty of draughting and serving writs, pleadings, notices, &c., and other mat- ters transpiring in the office of the law- yer or the clerk of court, which is the function of the attorney. The term cor- responds to barrister in English usage, and advocate in that of Scotland. But as in recent times the two functions are, as a general thing, in the United States, united in the same person, the distinc- tion in meaning between attorney and counsel or counsellor is not rigidly main- tained. In New York, it has been some- what revived by a very recent rule of the court of appeals, prescribing at least two years' practice or study after admis^ - sion as an attorney, before one can be admitted as a counsellor. See Advo" cate; Attorney; Barrister. Counsel's opinion, or advice of counsel. In certain cases., as when one who has preferred a complaint is sued for malicious prosecution, or where an attorney is sued for negligence, it is an important ground of defence to show that defendant acted by advice of coun- sel, or took counsel's opinion. Counsel's signature. This is re- quired, in some jurisdictions, to be affixed to pleadings; for satisfying the court that they are interposed in good faith and upon legal grounds. COUNT. 1. A title. of nobility. 2. A distinct statement, in a declara- tion or indictment, of the cause of action or offence. The term is most frequently em- ployed in reference to pleadings con- ducted according to the course of the common law. Under this system, the cause of action is customarily stated in several different modes, alleging the legal effect of the facts which the plain- tiff expects to prove, in various differ- ent aspects ; in order that, whatever the condition of the proof at the close of the trial may prove to be, the plaintifE may have in his declaration an averment under which he may recover, if in any aspect a recovery is warranted by law. These distinct, alternative statements of the cause of action are called counts. COUNTER-CLAIM. The codes of reformed procedure which have been adopted in many of the United States in recent years have introduced a lib- eral practice of allowing a defendant to oppose a recovery sought by plaintifE, COUNTER-CLAIM 297 COUNTER-PLEA by setting up and establishing any cross- demand which may exist in his favor against plaintiff. This practice is cota- prehensive of both recoupment and set- off; it is also broader; demands may often be interposed as a counter-claim, ■which could not be in the other modes. The New York code, which is a repre- sentative of others on this subject, de- fined a counter-claim, by section 150 ; see infra. Any claim coming within this section may be set up by defendant in his answer, with the effect, that, if the . plaintiff's cause of action and the coun- ter-claim are both established, the counter-claim reduces the plaintiff's de- mand; while, if the defendant defeats the claim in suit upon its merits, and establishes his counter-claim also, he recovers judgment for the latter. A counter-claim must be one "existing in favor of a defendant and against a plain- tiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action j 1. A cause of action arising out of the contract or transaction set forth in the com- plaint as the foundation of the plaintiff's claim, or connected with the subject of ac- tion. 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commence- ment of the action." N. Y. Code of Pro. § 150. A counter-claim is an opposition claim, or demand of something due ; a demand of something which of right belongs to the defendant, in opposition to the right of the plaintiff. Silliman v. Eddy, 8 How. Pr. 122. And see Recoupment ; Set-off ; also U. S. Dig. tit. Set-off. It is any claim or demand of the defend- ant against the plaintiff in an action, which, if allowed, will reduce or overrun the plain- tiff's claim. Gage v. Angell, 8 How. Pr. .335. When a defendant has, against the plain- tiff, a cause of action, upon which he might have maintained a suit, such cause of action is a counter-claim ; in other words, a cross- demand. Davidson v. Remington, 12 How. Pr. 310. A counter-claim in actions arising upon contract must be a demand which might have arisen out of, or could have had some connection with, the original transaction, in the view of the parties. It must be one which the parties may have supposed, when they made the contract, might, in some event, give one party a claim against the other for compliance or non-compliance with its provisions. Conner v. Wiilton, 7 Jnd. 523. A counter-claim is a claim which, if established, will defeat or in ftime way qxialify the judgment to which the plaintiff is otherwise entitled. Dietrich v. Koch, 36 Wis. 618. COUNTERFEIT, v. To make some- thing falsely and fraudulently, in imita- tion or the semblance of that which is true. Counterfeit, n. : A thing made falsely and fraudulently in imitation or the semblance of that which is true. These words are chiefly used of imi- tations of coin, or of paper money or securities depending upon pictorial der vices and designs for identity or assmv ance of genuineness. The making a false imitation of an instrument depend- ing on signatures to show genuineness and validity is more properly styled forgery. Counterfeit money must be like the true money ; for the word counterfeit implies resemblance or likeness; and without it there is very little danger of imposition or fraud. 1 Hale, 184, 215 ; 5 Bac. Abr. 129. Counterfeit imports an imitation, like- ness, resemblance. State v. Calvin, R. M. Charlt. 151. A counterfeit bill is one printed from a false plate, and not a bill printed, legiti- mately or illegitimately, from the genuine plate. Kirby v. State, 1 Ohio St. 185. Counterfeiter, is one who unlawfully makes base coin in imitation of the true metal, or forges false currency, or any in- strument of writing, bearing a likeness and similitude to that which is lawful and genu- ine, with an intention of deceiving and impos- ing upon mankind. Thirman w. Matthews, 1 Stew. 384 COUNTERPART. One of two cor- responding copies of a written instru- ment; a duplicate. When the several parts of an indenture are interchangeably executed by the parties thereto, that part or copy which is executed by the grantor is called the original, and the rest are counterparts ; though of late it is most frequent for all the parties to exe- cute every part, which renders them all originals. (2 BZ.296; 1 Steph. Com. 483.) A duplicate copy of a deed is, however, frequently called a counterpart. Mozley SrW. The term seems derived from the ancient practice of executing indentures and chiro- graphs by writing them twice on the same sheet of parchment, beginning from a space in the middle (where it was afterwards divided by cutting through) ; the parts, when thus written, lying opposite or counter to each other. Burrill. See Chieogkaph. COUNTER-PLEA. A pleading of an incidental kind, diverging from the main series of the allegations. Thus, when a party demanded oyer, in a case where upon the face of the pleading his COUNTRY 298 COUNTY adversary conceived it to be not demand- able, the latter might demur, or, if he had any matter of fact to allege as a ground why the oyer could not be de- manded, he might plead such matter, and if he pleaded, the allegation was called a counter-plea to the oyer. Steph. Plead. 79. These pleas are now but little used. In the more ancient system of plead- ing, counter-plea was applied to what was, in effect, a replication ta aid prayer, q. v.; that is, where a tenant for life or other limited interest in land, having an action brought against him in respect of the title to such land, prayed in aid of the lord or reversioner for his better defence, that which the demand- ant alleged against either request was called a counter-plea. Cowel. COUNTRY. 1. The inhabitants of the vicinage; the community from which a jury is to be drawn. Thus the com- mon termination of a plea tendering an issue of fact calling for jury trial was, of this the party " puts himself upon the country." Compare Pais. 2. The territory of an independent nation, or even the nation itself; as in the phrase, a foreign country. The word country, as used in the United States revenue laws, embraces all the pos- sessions of a foreign state, however widely separated, which are subject to the same supreme executive and legislative control. Stairs v. Peaslee, 18 How. 521. In a statute prescribing that the value of articles imported shall be estimated by their value at the principal markets of the coun- try from which they are exported at the time of exportation, without reference to the country of their production, the word country is used with reference to state or nation, ratlier than mere local and geo- graphical division ; hence an article im- ported from Halifax is to be appraised according to its value in the principal mar- kets of the British dominions. lb. In its primary meaning, country signifies place ; and, in a larger sense, the territory or dominions occupied by a community ; or even waste and unpeopled sections or regions of the earth. But its metaphftr- ical meaning is no less definite and well understood ; and in common parlance, in historical and geographical writings, in diplomacy, legislation, treaties, and inter- national codes, the word is employed to denote the population, the nation, the state, or the government, having possession and dominion over a territory. United States V. The Recorder, 1 Blaichf. 218, 225 ; 6 iV. y. Leg. Obs. 286. Country is used, in the act of March 1, 1817, concerning navigation, in this en- larged sense ; and embraces the colonies of any foreign power, within the scope of the act, as well as those dweUing within its proper territory. It means the entire nation, and not merely a section or portion of ter- ritory belonging to the nation. 76. In act of July 14, 1862, § 14, which pre- scribes an additional duty on goods the produce of countries beyond the Cape of Good Hope, but imported from places this side of it, the word countries is used in a local and geographical sense, without regard to the subdivision of the territory under dif- ferent governments, and therefore includes the British East Indies. Campbell v. Bar- ney, 5 Blatchf. 221. COUNTY. The name bestowed in England and most of the United States upon the principal civil division of a kingdom or state; such a division as anciently was governed by a count (or earl), from which the name is derived. It is now used for the territory com- prised within the boundaries of a county, and also for the inhabitants collectively jn their political capacity, or as a legal community having distinct rights, pow- ers, and liabilities; the latter use being, probably, the most frequent in jurispru- dence. County, from comitatug, signifies the same as shire, the one coming from the French, the other from the Saxon. It contains a circuit or portion of the realm, into which the whole land is divided, for the better government of it, and the more easy admin- istration of justice, so that there is no part of this kingdom that hes not within some county; and every county is governed by a yearly officer, the sheriff. {Fortescue, ch. 24.) Of these counties, the numbers have been different at different times. It seems that this division of the kingdom was made by King Alfred. Jacob. When the terms "county" and "people of the county" are interchangeable, see County Court of St. Louis County v. Gris- wold, 58 Mo. 176. County aforesaid. Where more than one county is named in a declaration, "county aforesaid" refers to the county named in the margin. Sutton •/. Penn, 2 W. Bl. 847. County board, in HI. Const. 1870, art. 10, § 10, means the body authorized to trans- act county business. It embraces the board of supervisors in counties under township organization, and the board of county com- missioners to be elected in counties not under township organization, and also ap- plied to the county courts in such counties until they were superseded. Broadwell v. People, 76 lU. 554. County bridge. A bridge of the larger class, erected by the county, and which the COUNTY 299 COUNTY county is liable to keep in repair. Taylor V. Davis County, 40 loiva, 295. County commissioners. The officers having general charge of the business of a county are in some of the states called by this name ; in other states, supervisors. County corporate. A city or town with more or less territory annexed to it, to which, out of special grace and favor, the kings of England have granted the privilege to be counties of themselves, and not to be comprised in any other county ; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. Such .are London, York, Norwich, &c. 1 Bl. Com. 120. ■ County court. In England, there was a court of great antiquity and dig- nity thus entitled. This old county court was a tribunal incident to the jurisdiction of the sheriff, and was not a court of record. It had formerly ex- tensive jurisdiction in personal actions, and power to entertain many real ac- tions. Proceedings were removable from it into a superior court by reeordari facias loquelam, or writ of false judg- ment. Wharton describes it as still having authority to proclaim outlaw- ries of absconding debtors, and power to hold elections of knights of the shire, coroners, and otherwise act for the county. The title is, later, employed for tri- bunals of limited jurisdiction estab- lished in the county of Middlesex, under Stat. 22 Geo. II. ch. 33 ; and later stiU, upon a larger class of tribunals of lim- ited jurisdiction, established under Stat. 9 & 10 Viet. ch. 95, known as the county courts act. In pursuance of this act, the whole of England and Wales, with the exception of London, has been di- vided into districts, in which the several county courts are established; upwards of 500 in all. By the county courts act and subsequent acts these courts have 1. A common-law jurisdiction, including recovery of debts or damages not exceed- ing £50; consent actions of every de- scription; ejectments, where the annual value and rent do not exceed the sum of £20; actions for sums not exceeding £50 on contract transferred by order of a superior court; actions of tort trans- ferred in like manner, upon affidavit of defendant that plaintiff has no visible means of paying costs; applications for discovery of documents; interrogatories, and compelling an answer thereto; at- tachments of debts; and equitable de- fences and replications. 2. An equity jurisdiction, in cases where the amount involved does not exceed £500; which includes suits by creditors, legatees, heirs-at-law, and next of kin, against or for accounts or administration of per- sonal or real estate, or both; suits for the execution of trusts; suits for fore- closure or redemption, or for enforcing any charge or lien ; suits for specific per- formance, or for the delivering up or cancelling any agi-eement for the sale or purchase of any property; proceedings under the trustee relief acts, or trustee acts; proceedings relating to the main- tenance or advancement of infants ; suits for the dissolution or winding up of partnerships; and proceedings for or- ders in the nature of injunctions. 3. Certain jurisdiction in probate, admi- ralty, and bankruptcy. The county courts have also exercised an auxiliary or ministerial jurisdiction, in connection with the superior courts of law and equity. They were not ab- rogated by the supreme court of judi- cature acts, but the fusion of law and equity, and many other provisions gov- erning remedies, apply to them. See a judicial statement of the operation of those acts upon the administration of justice in the county courts, in 59 Law Times (Oct. 9, 1875), 379. Throughout the United States, county court is extensively used as a name for a class of courts having civil jurisdiction in controversies of medium grade, also varied powers in the charge and care of persons and estates coming within legal guardianship; a limited criminal juris- diction; appellate jurisdiction over jus- tices of the peace ; and numerous powers and duties in the administration of county affairs and business. The term county court, as used in section 21 of the act of Feb. 12, 1849, was de- signed only to apply to the sittings ' of the county court for the transaction of county business. County of St. Clair v. Irwin, 15 lU. 54. County court and court of the county are convertible terms. Palmer v. Craddock, 1 Sneed, 215. When action of the county court is men- tioned, reference is had to the court as pre- COUNTY 300 COURT sided over by the county judge alone, un- less the subject inTolvea levies, appropria- tions, and those other financial matters wherein the justices of the peace are asso- ciated with him. Bowling Green, &c. R. B. Co. V. Warren County Court, 10 Bush, 711. County ofiScer. One of the officers by whom the county performs its usual politi- cal functions, — its functions of government. A constitutional provision, that all " county officers shall be elected by the electors of the respective counties," does not prevent the legislature from passing an act authorizing a county subscription to be made to the stock of a railroad corporation, and naming in the act a board of commissioners to carry its provisions into effect. Such commissioners, in performing a ministerial duty of issuing bonds to pay for the stock subscribed, do not act as county officers. Sheboygan Co. V. Parker, 3 Wall. 93. Compare Matter of Whiting, 2 Barb. 513 ; Matter of Carpenter, 7 Id. 30. The county judge is not embraced by the phrase county officers. State v. Glenn, 7 Hehh. 472. County palatine. A term bestowed upon certain counties in England, the lords of which in former times enjoyed especial privileges. They might pardon treasons, murders, and felonies. All writs and indict- ments ran in their names, as in other coun- ties in the king's ; and all offences were said to be done against their peace, and not, as in other places, contra pacem domini regis. But these privileges have in modern times nearly disappeared. County purpose. The term includes only the ordinary expenses of the county ; the payment of the county debt or the in- terest thereon is not within these ordinary expenses. McCormick v. Fitch, 14 Minn. 252. Subscription to a local railroad is a county purpose, for which the legislature may con- stitutionally authorize a county tax. Louis- ville, &c. R. R. Co. I). County Court of David- son, 1 Sneed, 637. The term county purpose does not include labor upon a local drain or watercourse. State V. Seaman, 23 Ohio St. 389. County rate. A tax levied on the occu- piers of lands, and applied to many miscel- laneous purposes incident to the government of a county ; among which the most im- portant are those of defraying the expenses connected with prisons, reimbursing to pri- vate parties the costs they have incurred in prosecuting public offenders, and defraying the expenses of the county police. Wharton. County rates are certain assessments im- posed on every parish of a county by the justices assembled in quarter sessions, and are applicable chiefly to the payment of coroner's fees for travelling, and to the re- pair of county bridges, highways, jails, houses of correction, shire-halls, and lu- natic asylums. They are also devoted to the payment of the charges of prosecuting felons and vagrants, and bringing insolvent debtors before the circuit commissioners. These rates are assessed upon the full and fair annual value of lands and tenements ratable to the relief of the poor, and are raised by the church-wardens and overseers, who pass them over, through the high con- stables, to the county treasurer. Cabins Lawyer, 660. COUPON. A part of a commercial instrument, intended to be cut off, and used as evidence of something con- nected with the contract mentioned in the instrument. Coupons are generally attached to bonds or certificates of loan, upon which interest is payable at partic- ular periods; and, when the interest accrues, they are cut off and presented to the obligor or borrower, as an inde- pendent demand. ZJOOC CJfti 2 i ■/. A coupon is a remnant shred {papier portani interet] ; a dividend in the public fun ds ; an interest certificate, — printed at the botr tom of transferable bonds, given for a term of years. There are as many of these certifi- cates as there are payments of interest to be made. At each time of payment one is cut off and presented for payment. Hence the name coupon. The term does not im- ply a negotiable contract, unless the word bearer, holder, or equivalent words are in the instrument. Myers v. York, &c. B. E., 43 Me. 232. COUR DE CASSATION. Court of cassation, or breaking. The supreme judicial tribunal of France, and court of last resort, both civil and criminal. COURT. Court, says Cowel, is the house where the king remaineth with his retinue ; also, the place where justice is administered. These two meanings were, in the beginning, closely con- nected. For, in early English history, when the king was actually the fountain and dispenser of justice, nothing could be more natural than that subjects ag- grieved by the conduct of powerful barons, or complaining of each other's shortcomings or misconduct, should use the expression "the court," in speaking of the journey to the place where the king was domiciled, and the application to him preferred, usually, in the court (curia or curtis) oi the palace, for inter- ference and redress. Anciently, the " court," for judicial purposes, was the king and his immediate attendants; later, it meant, in the judicial sense, those to whom he had delegated the authority to determine controversies and dispense justice, but who still sojourned or trav- COURT 301 COURT elled with him. It was an important stipulation in Magna Charta, that the court (speaking judicially) should no longer migrate with the royal progresses, but should be held at some settled place ; which was carried into effect by the or- ganization of aula regia, q. v. Now, the word court might well have been changed for a more appropriate substi- tute. But names are more enduring than things. Court continued in use in the sense of a tribunal of justice ; an author- ity organized to hear and determine controversies in the exercise of judicial power. Court has also been retained in its original and general sense, in the titles of some deliberative bodies, such as the general court of Massachusetts (the legislature) ; court of aldermen, or of directors, in occasional English use. From the frequent necessity for discriminating between the judge or judges charged with deciding the law, and the jury intrusted with the deter- mination of the facts, arises a usage of employing the phrase the court, to signify the permanent judicial mem- bers, as opposed to the jury. Thus, in some uses court may include the jury; more strictly it does not. Whether a clerk is an essential member of a court is not easily determined. Some have considered the attendance and co-op- eration of a clerk the distinguishing element between . a court and a judge acting individually. Blackstone, indeed, says, that in every court there must be at least three constituent parts, — the actor, reus, and judex; the actor, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it ; and the judex, or judicial power. 3 Bl. Com. 25. But we do not think that the parties enter into the proper definition of the term. Burrill's definition seems more accurate: An organized body, vrith defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers; viz., attorneys and counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial ofiioers to execute its com- mands and secure due order in its pro- ceedings. A place of meeting, assigned by law, is probably a proper element of a court. Judicial functions can be exercised by courts only when in actual session at the times and places specified by law, and in the manner which the law pro- vides. Proceedings at another time and place, or in another manner, though in the personal presence and under the direction of a judge, are coram non ju- dice, and void. Wightman v. Karsner, 20 Ala. 446; Brumley ». State, 20 Ark. 77. Various classes of courts are desig- nated by particular names, expressing distinction in the nature or extent of their jurisdiction, the system of juris- prudence or the principles upon which they administer justice, or in their forms and manner of procedure. Such terms are: Courts of original jurisdiction, sig- nifying courts which have jurisdic- tion of causes in the first instance, as distinguished from those having juris- diction to review the decisions or pro- ceedings of other courts by appeal, writ of error, or other similar means. The latter class are termed courts of appel- late jurisdiction, frequently appellate courts, and sometimes courts of error. Courts of general jurisdiction ; those having jurisdiction of causes of every nature, with few or no exceptions; dis- tinguished from tho.se which have cog- nizance of certain limited classes of causes only, and which are termed courts of limited jurisdiction, or of special jurisdiction. Courts whose jurisdiction is limited territorially, having jurisdic- tion over causes arising or persons being within certain comparatively narrow limits, are called local courts. Inferior courts, meaning sometimes courts which are subordinate to other courts, sometimes, merely courts of lim- ited jurisdiction; from which are dis- tinguished superior courts, which term designates courts of controlling author- ity as to inferior courts, yet which are courts of original jurisdiction, whether with or without appellate jurisdiction over the, inferior courts; and supreme COURT 302 COURT courts, designating those which possess the highest jurisdiction, generally exer- cised by reviewing the decisions of either superior or inferior courts, or both. These three terms are all somewhat vague, and are differently used in vari- ous judicial systems, according to the peculiar organization and relations of the courts. Thus, in England, the term superior courts was long the distinctive name of the group composed of the court of chancery, and the three highest common-law courts, — the king's bench, common pleas, and exchequer: all of inferior jurisdiction to these being known as inferior courts. Civil courts ; including aJl which afford remedies for the enforcement of private rights and the redress of private wrongs, as distinguished from criminal courts, whose object is the redress of public wrongs and punishment of public of- fences. Courts of law, which administer jus- tice according to the principles and forms of the common law; courts of equity, whose jurisdiction and procedure are defined by equitable principles and forms; courts of bankruptcy and courts of insolvency, having cognizance of the administration of the law of bankruptcy and the distribution of insolvent estates ; courts of admiralty, whose jurisdiction is limited to maritime causes, and which proceed under the forms of admiralty practice; prize courts, having jurisdic- tion of maritime captures; courts-mar- tial, having cognizance of offences against military laV, and proceeding under mil- itary forms; and ecclesiastical courts, also called courts Christian, which deal with matters relating to religion or ec- clesiastical persons, — all which terras once denoted distinct classes of courts, some of which, as courts-martial, still preserve a separate existence; but in modem times the functions of several of these are frequently united in a single tribunal. A familiar distinction is that between courts of record and courts not of record : the former being described as courts whose acts and judicial proceedings are enrolled for a perpetual memory and testimony, which have power to fine and imprison, and upon whose judgments error may be brought. In modem usage, a court of record is generally dis- tinguished by the possession of a seal. A statute passed in pursuance of a treaty stipulation to receive and adjust claims, authorizing certain judges to do so on ex parte applications, and to transmit the evi- dence and the decision to the executive de- partment, does not create a court or judi- cial tribunal, but the judge acts as a com- missioner, and his decision is not appeala- ble. United States v. Ferreira, 13 Bow. 40. Where the mayor of Leavenworth is sit- ting to hear the examination of offenders (as he may do), the tribunal is a court within the meaning of art. 3, § 1, of the constitution, and the proceeding is a prose- cution. Malone v. Murphy, 2 Kan. 250. A court which is entitled to have a seal is a court having a seal, though it actually has none. Ingoldsby v. Juan, 12 Cal. 664. The words "court" and "judge," or "judges," are frequently used in our statutes as synonymous. When used with reference to orders made by the court or judges, they are to be so understood. Michigan Central R. R. Co. V. Northern Indiana R. E. Co., 3 Ind. 289. The term court may, he construed to mean the judges of the court, or to include the judges and jury, according to the con- nection and the object of its use. Grold i;. Vt. Central R. R. Co., 19 Vt. 478. An acknowledgment of a sheriff's deed certified by the clerk to have been taken " before the judge of the circuit court," held, to be not fatally defective ; the terms judge and court being sufiiciently synonymous to exclude any presumption that the acknowl- edgment was not taken before the court. McClure v. McClurg, 53 Mo. 173. Court, m rule 82 of N. Y. Rules of 1858, No. 52, — requiring applications for allow- ance to be made " to the court before which the trial is had or the judgment rendered," — means justice. Dyckman v. McDonald, 5 Sow. Pr. 121 ; Osborne v. Betts, 8 Id. 31. A change of judges after verdict, and before final decree, does not change the court. For all judicial purposes it remains the same; and such succeeding judge may render a final decree without hearing any evidence. Hedrick v. Hedrick, 28 Ind. 291. The casual and temporary absence of one of the judges of a court from the seat assigned him neither breaks up the coint nor impairs the validity of its proceedings. Tuttle V. People, 36 N. Y. 431. The chancellors present at the hearing and decision of a cause constitute the court ; and an absent chancellor's opinion will not be taken into consideration for the purpose of showing a division in the court. John- son V. Lewis, 1 Rich. 390. The office of clerk is not necessary to the existence of a court. The court may keep its own minutes and make its own ad- journments without a clerk. Mealing f. Pace, 14 Go. 596. COURT 303 COURT An inferior court, within the meaning of Const, art. 5, § 1, is a court whose judg- ments or decrees can be reviewed, on ap- peal or writ of error, by a higher tribunal, whether that tribunal be the circuit or su- preme court. Nugent v. State, 18 Ala. 521. To constitute a court a superior court as to any class of actions, within the com- mon-law meaning of that term, its jurisdic- tion of such actions must be unconditional, 60 that the only thing requisite to enable the court to take cognizance of them is the acquisition of jurisdiction of the persons of the parties. Simons v. De Bare, 4 Bosw. 547. Coke's definition — a court is a place where justice is judicially administered — wants fulness, la addition to the place, there must be the presence of the officers constituting the court. Time must be re- garded also ; for the officers of a court must be present at the time appointed. To consti- tute a court, its officers, and the time and place of holding it, must be those prescribed by law. Hobart v. Hobart, 45 Imva, 501 . Court-house, in the law regulating exe- cution sales, means the building where the court is being held, although it may be a church near the regular court-house. Kane ». McCown, 55 Jib. 181. A power in a mortgage to sell " at the north door of the court-house," may be well executed by a sale at the ruins of the north door, if the building has meantime been de- stroyed by fire. The meaning of the phrase consists in identifying a place of sale, not in the identity of the door. Wal- ler V. Arnold, 71 III. 350. Such a power applies to a building ap- propriated by order of the county court to court purposes, pending repairs in the court-house proper. Hambright v. Brock- man, 59 Mo. 52. Courts of England. In Anglo-Sax- on times, the courts of justice were the following: Wittenagemot, which was the court of appeal; council of witten- agemot, being the prototype of the privy council; shire-gemot, or county court, called also sheriS's tourn, and being the court of first instance for general civil cases ; and the hundred courts and tyth- ing courts, which were courts for cases of smaller and merely local importance. Each of these courts, except the council of wittenagemot, exercised a criminal as well as a civil jurisdiction. The courts which possessed criminal jurisdiction were: In Anglo-Norman times, the county court, hundred court, and tything courts remained; but, in addition to them, a new court was introduced, being the court called the aula regis or curia regis, and which supplied the place of the Anglo-Saxon wittenagemot. This tri- bunal was, in fact, interchangeable with the house of lords, which thereupon be- came the supreme appellate court, and exercised for centuries an original juris- diction also. Additional to the house of lords, there were successively developed from aula regis the following: The judicial com- mittee of the privy council, which re- mains a committee still ; the court of ex- chequer, the separation of which from the aula regis is commonly assigned to the reign of Richard I., when the pur- poses of the king's revenue, for which exclusively it was set apart, necessitated its more permanent constitution as a court; the court of common pleas, the separation of which from the aula regis is commonly assigned to a date anterior to Magna Charta (it seems to be men- tioned therein as a court already estab- lished), and which received, as subject- matter of its jurisdiction, civil causes (chiefly real property controversies) be- tween subjects, in which the king had no interest; the court of king's bench, the separation of which from aula regis is commonly assigned to the reign of Edward I., that reign being the epoch of the establishment of common-law procedure in its leading features; the court of chancery, which acquired exist- ence and jurisdiction as a separate court, in the reign of Edward III. , under an ordinance directing the lord chancellor to inquire of matters of " grace," and was strengthened in the next reign (Richard II.) by receiving authority to issue the subpoena; and the star cham- ber, which was the residuum of the aula regis after the separation of the court of chancery, and had a jurisdiction partly civil but principally criminal, it being a tribunal supplementary to the other courts, and interposing where the others were from any cause prevented from acting. And, besides the above, which came into existence by successive divi- sions of the jurisdiction of aula regis, are the following, whose origins are in- dependent of that tribunal : The court of admiralty, developed out of the jm-isdic- tion of the constable over maritime causes; the courts-martial, developed COURT 304 COURT out of the jurisdiction of the earl mar- shal over military causes ; the judges of assize and jail delivery, descended from the justices itinerant or in eyre, who were first appointed by an act of parlia- ment, in 1176; and the courts ecclesias- tical, which may have had an origin from the church, but have derived, since the reformation, their authority from the king, as the head of the church of England. The judicial system of England has now been reorganized by two acts, tak- ing effect together in November, 1875, — the Stat. 36 & 37 Vict. ch. 66, and 38 & 39 Vict. ch. 77. They are known as the supreme court of judicature acts. With respect to the styles of courts, the judicial organization, and the dis- tribution of jurisdictions, these acts unite and consolidate into one supreme court of judicature in England the fol- lowing courts: High court of chancery, court of queen's bench, court of common pleas, court of exchequer, high court of admiralty, court of probate, court of divorce and matrimonial causes; the London court of bankruptcy remains an independent court, though the office of chief judge in bankruptcy is fiUed by a judge of the high court of justice, and the decisions of the court are subject to review by the high court of appeal. The supreme court is subdivided into two permanent divisions, — the high court of justice and the court of appeal; the for- mer of which has original and some ap- pellate jurisdiction, and the latter appel- late and some original jurisdiction. The members of the high court of justice are, the lord chief justice of England, the master of the rolls, the lord chief justice of the common pleas, the lord chief baron of the exchequer, the vice- chancellors of the high court of chan- cery, the judge of the court of probate and of the court for divorce and matri- monial causes, the puisne judges of the court of queen's bench and of the court of common pleas, the junior barons of the court of exchequer, and the judge of the high court of admiralty. The lord chief justice of England is president of the court. The judges of the high court of appeal are, the lord chancellor, the loj'd chief justice of England, the mas- ter of the rolls, the lord chief justice of the common pleas, and the lord chief baron of the exchequer, who are styled the ex officio judges of the court; also, the lords justices of appeal in chancery, and an additional judge appointed, these being the ordinary judges of the court, and styled justices of appeal. The appointment, if necessary, of addi- tional judges of appeal is authorized. The lord chancellor is president of the court of appeal. Many provisions, in detail, are made for eligibility of persons to be appointed judges; for the tenure of the office of a judge; for rendering every such judge incapable of sitting in the house of com- mons; for the oath of office of a judge; for the precedence of judges, and for the non-judicial extraordinary duties of judges ; for the rights and obligations of existing judges ; for the salaries and re- tiring pensions of future judges; and for resignations of judges. The high court of justice is declared a superior court of record, and invested with the following jurisdictions : 1. All the jurisdiction of the high court of chancery, as well in its common law as in its equity side, and including therein the ordinary and also the special juris- diction of the master of the rolls, other than and except the following jurisdic- tions, — the appellate jurisdiction of the court of appeal in chancery, or of the same court sitting as a court of appeal in bankruptcy; the jurisdiction of the court of appeal in chancery of the county palatine of Lancaster; the jurisdiction, whether of the lord chancellor or of the lords justices (that of the lords justices being, however, in a manner trans- ferred), over idiots, lunatics, and persons of unsound mind; the jurisdiction of the lord chancellor in the matter of letters- patent and in the matter of commissions or other writings under the great seal, or over colleges and charities ; and the jurisdiction of the master of the rolls over records in England. 2. All the jurisdictions of the court of queen's bench, the court of common pleas at Westminster, the court of exchequer, the high court of admiralty, the court of probate, the court for divorce and matrimonial causes, the court of com- COURT 305 COURT mon pleas at Lancaster, and that at Durham, and the courts created by commissions of assize, oyer and ter- miner, and jail delivery; including in such jurisdictions the respective juris- dictions exercised by all or any one or more of the judges of the courts named, respectively, whether sitting in court or in chambers, or elsewhere, and all powers ministerial, and other of such respective courts and of their or any of their respective judges, and all duties and authorities incident to the same ju- risdictions, or any part thereof, respec- tively. The court of appeal is declared a su- perior court of record, and invested with the following jurisdictions: 1. The appellate jurisdiction of the lord chan- cellor and of the court of appeal in chan- cery, and of the same court sitting as a court of appeal in bankruptcy; the ju- risdiction of the court of appeal in chan- cery of the county palatine of Lancaster, and of the chancellor of the duchy and county palatine of Lancaster when sit- ting alone or apart from the lords justices of appeal in chancery as a judge of re- hearing or appeal from decrees or orders of the court of chancery of the county palatine of Lancaster; the jurisdiction of the court of the lord warden of the stannaries and his assessors, and of the lord warden in his capacity of judge; the jurisdiction of the court of excheq- uer chamber; the appellate jurisdiction of her majesty in council, or of the ju- dicial committee of her majesty's privy council in admiralty and lunacy matters. 2. The appellate jurisdiction in respect of all judgments and orders of the high court of justice, or of any judges or judge thereof, with such powers incident thereto as are necessary for the exercise of the same jurisdiction, and as are given to the high court of justice. The acts preclude error or appeal being brought to the house of lords or to the judicial committee of the privy council from any judgment or order of the fol- lowing courts: The high court of justice, the court of appeal, or the court of chan- cery of the county palatine of Lancaster; with a saving clause as to proceedings while the existing courts continue to exist. In case any ecclesiastical causes are referred to the court of appeal, that court shall be constituted of such of the judges of the court of appeal (to be as- sisted by such assessors, being archbish- ops or bishops of the church of Eng- land) as her majesty may direct by any general rules to be made by order in council upon the advice of any five or more of the judges of the court of ap- peal, and of any two or more of the said archbishops and bishops, being members of the privy council, subject to the same rules being approved by parliament. The several jurisdictions which in the act are mentioned to be transferred to the court of appeal respectively are abrogated, subject to provisions as to the existing business. The high court of justice is divided into five divisions, called, respectively, the chancery division, queen's bench division, common pleas division, excheq- uer division, and probate, divorce, and admiralty division; to each of which are assigned, as the general rule, the judges of the old courts similarly named, and substantially the respective jurisdic- tions of those courts. And many provi- sions are made, as to matters of detail, for the distribution and despatch of business, and the conduct of proceed- ings. The practice is to follow the act, and rules and orders of court made pur- suant to it ; and, in the absence of such regulation upon any special point, shall be as nearly as may be the same as the old procedure and practice. Procedure is modified by provisions establishing a fusion of law and equity remedies, and by enactment of some rules governing the determination of legal rights of frequent occurrence; both which are more fully stated under Judicature Acts, q. v. The change in the organization of the English courts called for a change in the arrangement and system of the reports. The reports of the council of law report- ing are accordingly now published in a, new issue, commencing with the year 1876, one series comprising the appeal cases, or decisions of the court of appeal, and five series corresponding with and named for the five divisions of the high court of justice. Besides the courts of superior jurisdic- 20 COURT 806 COURT tion, described in the above sketch, are many courts of inferior or local jurisdic- tion, also ecclesiastical courts. For the description of the various English courts, see their respective names ; such as Aula Regia; Chancery; County Court; Court op Appeal; Court op Arches ; Court-Baron ; Court op Chivalry; Court op Common Pleas ; Court por Consideration op Crown Cases Reserved ; Court op the Coroner ; Court op County Pala- tine; Court for Divorce and Ma- trimonial Causes; Court op Dele- gates ; Court of the Duchy op Lancaster; Court op Exchequer; Court op Exchequer Chamber; Court op Faculties ; Court op Hustings ; Court op King's (or Queen's) Bench; Court-Leet ; Court OP THE Lord High Steward ; Court op Marshalsba ; Court-Martial ; Court op Oyer and Terminer; Court op Peculiars ; Court op Pie- poudre; Court op Probate; Court OP Requests ; Court op Stannaries ; Court op Star Chamber; Courts of THE Universities ; Ecclesiastical Courts; High Court op Admiralty; High Court op Chancery ; High Court op Justice; Hundred Court; Prerogative Court ; Superior Court ; Supreme Court of. Judicat- ure. Courts of the states, or state courts. While there is more uniformity than might be expected in the judicial sys- tems of the several states, considering that in organizing their tribunals they act independently of each other, and of any common standard, it is yet difficult to give any general sketch of the state judiciaries which shall be at all minute and particular, while correct as to all. It may be said, however, that there is very generally a supreme court, having both original and appellate jurisdiction, the judges of which separately visit Va- rious county seats at stated times to hold jury trials, and afterward meet and hold court together to review the decisions made by each other upon their circuits ; thus the court is at once the court of last resort and the tribunal of largest original jurisdiction. But in some of the states, where the increased judicial business has required it, an appellate court above the supreme has been es- tablished; and in some others the juris- diction of the supreme court is appel- late only. For original suits of lesser moment, there is, as a general thing, in each of the counties into which a state is divided, a court for the trial of suits in the first instance, known, usually, as the court of common pleas, the county court, the circuit court for the county, or some similar name; and this often has appel- late jurisdiction over still inferior juris- dictions. In each county is, also, a court for the care of estates of deceased per- sons and superintendence of children and lunatics, and for other matters in- volving legal care of property without ac- tive lawsuits, which is differently styled probate court, orphans' court, surro- gate's court, and the like, in different states. Then in each township are jus- tices of the peace, clothed with authority to try lawsuits involving small amounts, or founded upon minor wrongs. In many of the larger cities, where it is found that the general system is inade- quate for the increased judicial business, additional courts for the locality are es- tablished; for these, of the higher grade, city court and superior court are very common names ; while inferior ones are in many cases styled district or justices' courts. In a few of the states, where the dis- tinction between law and equity is strongly preserved, distinct courts of chancery exist; but more commonly such equity jurisdiction as is there exer- cised is vested in courts having also common-law powers. The trial of the graver offences is, perhaps, reserved to the supreme court; those of a medium character are often cognizable in a court of sessions, or in the county court, or in a branch of the supreme court termed the oyer and ter- miner, or in some court of the city having local criminal jurisdiction ; while petty offences are triable before justices of the peace, or recorders, or police courts in cities. It is not practicable to enu- merate all the titles employed to desig- nate courts of the states ; but the more important ones are the subject of sepa- rate explanations, under their appropri- COURT 307 COURT ate names, either below or under the heads. Prior to the organization of the pres- ent constitutional government of the United States in 1789, several of the states maintained courts of admiralty; but these were abrogated by the federal constitution, which vested that branch of jurisprudence exclusively in the na- tional courts. See Nicholson v. State, 3 Har. §■ M. 109 ; The Portland v. Lewis, 2 Serg. §• R. 201. For some account of the character of the leading courts of the states, see the various titles most in use ; such as Cir- cuit Court; City Court; County Court; Court op Appeals; Court OF Chancery ; Court op Common Pleas ; Court op Impeachment; Court op Ordinary; Court op Oyer AND Terminer; Court op Probate; Court op Sessions ; District Court ; Justices' Court ; Municipal Court ; Orphans' Court; Parish Court; Police Court; Superior Court; Su- preme Court; Surrogate's Court. Courts of the TTnited States, or United States courts. The purpose of the people of the United States, in organizing their present political system, to establish a dual system, — a national government for national purposes, for duiSes of common concern to the whole people; and a government by states for objects local or peculiar, or colored by the differing circumstances of the dif- erent communities, — involved the ne- cessity of creating a twofold system of courts; accordingly the United States government has its distinct scheme of courts, clothed with powers appropriate to the national sphere. The constitu- tion itself creates the supreme court. Acts of congress have established circuit and district courts for the ordinary ad- ministration of justice throughout the states, in controversies coming within the national jurisdiction. See Circuit Court; District Court; Supreme Court. The same authority has found- ed appropriate courts for the adminis- tration of justice in the District of Columbia (see Supreme Court op the District op Columbia) and in the territories, and a court of claims (q. V.) for the determination of claims preferred by individuals against the gov- ernment. The expression, courts of the United States has come to be employed in two senses: sometimes as signifying the ju- risdiction exercised under the national authority in the administration of jus- tice within the states; in other cases, as including any of the courts established by the national government. In the first or strictest sense, — as when one speaks of the equity or criminal juris- diction of the United States courts, the right of an assignee to sue in United States courts, and like expressions, — the meaning is, the district and circuit courts, and the supreme court in its ap- pellate capacity. But, in instances where the phrase has been used in acts of congress, the context and general purpose of the act have been held to show that the court of claims, the supreme court of the District of Columbia, and the courts created for the territories, have been held included. For an account of the different courts of the United States separately consid- ered, see Circuit Court; Court op Claims; District Court; Supreme Court. The courts established or sanctioned in Mexico during the war by the commander of the American forces were nothing more than the aigents of the military power to as- sist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property while it was oc- cupied by the American arms. They were subject to the military power, and their de- cisions were vmder its control. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize. Jecker v. Montgomery, 13 How. 498. • The supreme court of the District of Columbia is embraced by the expression, " courts of the United States in the general laws of congress ; " such as the acts regulat- ing the testimony of parties in the courts of the United States. Noerr v. Brewer, 1 Mc- Arthur, 507. Territorial courts are not courts of the United States, witiiin the meaning of the constitution of the United States. The state courts, and not the federal courts, are the successors of the territorial courts, on the admission of the territory to the Union as a state. Beatty v. Eoss, 1 Fla. 198. The phrase, courts of the United States, is sometimes used to include courts estab- lished by congress in the territories ; some- times it does not. United States v. Haskins, 3 Sawyer, 2@. COURT 308 COURT A territorial court is a TJnited States court, within the meaning of the act of May 12, 1864, and is to be regarded as co-ordinate with the courts organized under the consti- tution. Re Osterhaus, 6 Am. L. J. Rep. 519. Territorial courts. The territories are not states within the meaning of that word as generally used in the stat- utes relative to the jurisdiction and powers of the courts of the United states, Campbell v. Read, 2 Wall. 198; accordingly, the distinction between the federal and state jurisdictions, under the constitution of the United States, does not exist as to the territories, either in respect to the jurisdiction or the sub- jects submitted to the cognizance of their courts. They are legislative gov- ernments, and their courts legislative courts. Congress, in the exercise of its powers in the organization and govern- ment of the territories, combines the powers of both the federal and state au- thorities. Scott V. Jones, 5 How. 343. The jurisdiction of these courts, there- fore, is not restricted by the limits of the judicial power of the United States as de- fined in the constitution, Benner v. Por- ter, 9 How. 235; and they are courts of the United States only in the sense that they are created by the government of the United States, and derive all their powers from the acts of congress. In the organized territories (except Arizona), the judicial power is vested in a supreme court, district courts, probate courts, and justices of the peace. Rev. Stat. § 1907. By the revised statutes, the supreme court of each territory consists of a chief justica and two associate justices, ap- pointed for four years, who are required to hold an annual term at the seat of government of the territory. Each territory is divided into three judicial districts, and a district court is prescribed to be held by one of the jus- tices of the supreme court, at a time and place prescribed bylaw; and terms for causes in which the United States are not a party are held in the counties fixed by the laws of the territory. The supreme and district courts, respectively, possess chancery as well as common-law jurisdiction. Writs of error, bills of exceptions and appeals, are allowed in all cases from the final decisions of the district courts to the supreme court, under such regulations as may be pre- scribed by the territorial legislature. Justices of the peace are not given jur- isdiction of any matter in controversy when the title of land may be in dispute, or where the debt or sum claimed ex- ceeds one hundred dollars. The district courts have the same jurisdiction, in all cases arising under the constitution and laws, as is vested in the circuit and dis- trict courts of the United States; and the first six days of every term of the district courts, or as much as may be necessary, is required to be appropriated to the trial of causes arising under the constitution and laws ; and writs of error and appeal in all such cases are to be made to the supreme court of such ter- ritory, as in other cases. A marshal and attorney are appointed, as are the judges, by the president and senate, and a clerk by each supreme court judge in his district. Many other details of or- ganization and powers are prescribed by the revised statutes. Some embarrass- ment has been caused by questions of jurisdiction arising upon the change of the government of a territory into a state government. It is competent for con- gress to provide for the transfer of causes, whether civil or criminal, which are pending at the termination of the terri- torial government, to the national courts, with authority to proceed therein to a final disposition. Without such author- ity, cases pending in the territorial courts abate when the courts cease to exist by the change of organization. Forsyth v. United States, 9 How. 571; and see act of congress of June 12, 1858. COURT OF APPEAL. The name of one of the two subdivisions of the supreme court of judicature in England, as constituted by the judicature acts of 1873 and 1875. The judges of the court are, the chancellor, the chief justice of England, the master of the rolls, the chief justice of the common pleas, the chief baron of the exchequer (who are judges ex officio), and the justices of appeal in chancery, with one additional judge, and more if necessary. The chancellor is the president of the com't. Its jurisdiction is chiefly appellate; and COURT 309 COURT it is, in general, the tribunal of last re- sort in all ordinary suits and proceed- ings. COURT OF APPEALS, or COURT OF ERRORS. One or other of these titles, with slight modifications, is em- ployed in a number of the states, partic- ularly Delaware, Kentucky, Maryland, New Jersey, New York, Texas,Virginia, and West Virginia, to designate a court chiefly, often exclusively, of appellate jurisdiction, and constituting the court of last resort in the state, though sub- ject in constitutional cases to review in the supreme court of the United States. Court of appeals in cases of cap- ture. This was the name of a court created by the congress of the United States under the articles of confedera- tion which preceded the adoption of the constitution. It had appellate jurisdic- tion in prize causes. Its jurisdiction and powers have been considered in Talbot V. Three Brigs, 1 Dall. 95; Mil- ler V. The Resolution, 2 Id. 19; Ross V. Rittenhouse, Id. 160; Penhallow v. Doane, 3 Id. 54; United States v. Peters, 5 Crunch, 115; United States v. Bright, 1 Whart. Dig. (2d ed.) 143. COURT OF ARBITRATION. A court of somewhat novel character, the full title of which is the court of arbi- tration of the chamber of commerce of the state of New York, has been organ- ized in New York city, under authority of a state law passed in 1874. It is de- signed to meet the exigencies of com- mercial life in that city. Any party or parties having a controversy or dispute upon any mercantile subject may sum- mon the opposite party to appear before the chamber of commerce for the settle- ment of such dispute by one or more . arbitrators, if aU the parties are regu- larly elected members of such chamber of commerce; and other persons, parties to any controversy or dispute arising within the port of New York, or relating to a subject-matter situate or coming within that port, may voluntarily appear and submit the same to the chamber of commerce, which thereby obtains juris- diction of such matter and the parties. The official arbitrator, appointed by the governor of the state, presides; but the parties may name others to sit and de- cide the case with him. The pleadings are simple, each of the opposite parties presenting his views of the difficulty between them, and sustaining his side, with witnesses duly called. Counsel may be employed, if desired. The award of the arbitrator secures a final settlement of the matter submitted to him, is conclusive upon all parties there- to, and must be sustained in all the courts of the state. For a full state- ment of the jurisdiction, powers, and practical working of the court, see N. Y. Laws 1874, ch. 278, and Laws 1875, ch. 495. COURT OF ARCHES. The name of an English ecclesiastical court, origi- nally the court of appeal of the arch- bishop of Canterbury. Its name was derived from that of the church of St. Mary-le-Bow, in which the court was anciently held, called in Latin Sancta Maria de arcubus, the church of arches, from the peculiar architecture of its steeple. The judge was in like manner termed the dean of the arches. The an- cient jurisdiction of the court extended only over the thirteen peculiar parishes belonging to the archbishop in London , but, the office of dean of the arches hav- ing been united with that of the arch- bishop's principal official, he subse- quently, in right of such added office, received and determined appeals from the sentences of all inferior ecclesiasti- cal courts within the province. A prac- tice also grew up of bringing suits in this court in the first instance, the cog- nizance of which properly belonged to inferior jurisdictions within the prov- ince, but in respect of which the jurisdic- tion of the inferior judge was waived by a proceeding known in the canon law as letters of request, q. v. An appeal for- merly lay from the court of arches to the court of delegates, and afterwards to the privy council. COURTS OF ASSISE. See Assise. COURT-BARON. The name of an English court incident to every manor in the kingdom, held by the steward within the manor. Courts-baron were of two natm-es : one, termed the custom- ary court-baron, appertained entirely to the copyholders ; in it their estates were transferred by surrender and admit- COURT 310 COURT tance, and other matters were transact- ed relative to their tenures only. The other, termed the freeholders' court- baron, was a court of common law, not of record, held before the freehold tenants who owed suit and service to the lord of the manor; and of this court the steward of the manor was rather the registrar than the judge. Its most important busi- ness was to determine, in the real action called the writ of right, all controversies relating to lauds within the manor. It also had jurisdiction of personal actions, where the debt or damages did not amount to 40s. These courts, however, were long since disused; and their juris- diction was practically taken away by the provision of the county courts act, 1867 (30 & 31 Vict. ch. 142, § 28), by which no action or suit, which can be brought in any county court, is maintain- able in any inferior court not being a court of record. Covirts-baron seem to have been held in the colony of New York, while it was an English province. Bouvier. COURT OF CHANCERY. The name usually applied in England and the United States to a court possessing general equity jurisdiction. The title of the former superior com't of chancery in England was high court of chan- cery, q. V. In some of the United States, the title court of chancery is applied to a court possessing general equity powers, distinct from the courts of common law. This is now the case in Delaware, New Jersey, and Vermont. In Kentucky and Tennessee the title chancery court is used with a sim- ilar meaning. And throughout all the states the terms court of chancery or court of equity are used synonymously with reference to any court exercising equity jurisdiction, although not exclu- sively a court of equity. See Chan- cery. The defendant in an action at law gave a bond conditioned to perform such order or decree as the court of chancery should pass in the premises. Held, that his failure to perform a decree of a county court, sit- ting as a court of equity, was not within the condition. Morgan v. Morgan, 4 Gill ^ J. 395. COURT OF CHIVALRY. The name of an ancient English court, orig- inally held before the lord high consta- ble and the earl marshal jointly, and having jurisdiction both civil and crim- inal. It was also a court of honor, giv- ing reparation in matters of that nature for which the common law gave no re- dress. Its civil jurisdiction extended to contracts and other matters touching deeds of arms and war, and its criminal jurisdiction to pleas of life and member in matters of arms and deeds of war. Upon the abolition of the office of high constable, the court lost its criminal juris- diction, and during the eighteenth cen- tury was altogether disused. It was not a court of record. From it an appeal lay to the king in person. The modern military law and courts-martial appear to have been derived from this court. COURT OF CLAIMS. Upon gen- eral principles, the sovereign power can- not be sued except by its own consent; the United States have created this tri- bunal, in which demands preferred by individuals against the national govern- ment may be brought to a judicial deter- mination. The court was first created by act of Feb. 24, 1855 ; but under this law its powers were very limited, as in case of allowance of a claim it could only report to congress a bill authorizing pay- ment, and this was subject to the same delays as a favorable report from a com- mittee on claims would be. Subsequent acts have substantially reorganized the court upon the basis of rendering its judgments, unless appealed from, pay- able directly from the treasury. The power of the court to render judgment only extends to a judgment for a money demand; and this is held to restrain the jurisdiction so that the court has no power to proceed upon any other claims than those for payment of money due, Alire's Case, 6 Wall 573, 3 Ct. of CI. 447 ; and the claim must be in the nature of a claim of legal cognizance, founded on breach of contract. The court has no equitable jurisdiction, Bon- ner V. United States, 9 Wall. 156; nor can it entertain a demand against the government grounded in tort. Gibbons V. United States, 8 Wall. 269 ; but it may adjudge a set-off, Allen v. United States, 17 Wall. 207. The court is composed of five judges, COURT 311 COURT three of whom constitute a quorum; but the concurrence of three is necessary to decide a cause. It holds an annual ses- sion, at Washington. Its decisions are, in cases specified by law, subject to an appeal to the supreme court. COURT OF COMMISSIONERS OF SEWERS. The name of certain English courts created by commission under the great seal pursuant to the statute of sewers (23 Hen. VIII. ch. 5). The powers of each court are confined to such county or particular place as the commission shaU. expressly name. Their jurisdiction is to overlook the repairs of the banks and walls of the sea-coast and of navigable rivers, to cleanse such rivers and the sti'eams communicating there- with, and to assess rates upon the own- ers of lands within their district for ex- penses. 3 Bl. Com. 73, 74; 3 Steph. Com. 296-298. COURT OF COMMON PLEAS. In England, the court of common pleas, or, as it has also been called, the com- mon bench, has been for centuries an important common-law court. The date of its origin is not certainly known, but appears to be anterior to Magna Charta. Its early jurisdiction embraced contro- versies between subject and subject, in which the crown had no interest: these, in the earliest times, were real-property actions chiefly ; but, with the advance of civilization and increased variety and value of subject-matter of suits between individuals, the scope for the exercise of the jurisdiction of the court increased proportionately. It was, also intrusted with a certain appellate jurisdiction over proceedings of revising barristers and some other matters. 3 Bl. Com. 36 ; Z Steph. Com. ZZZ. By the supreme court of judicature act, 1873, 36 & 37 Vict, ch. 66 (see Courts) , the business of the court of common pleas has been, from the time that the act came into opera- tion (1875), transferred to the common pleas division of the high court of jus- tice established under that act. In many of the United States, court of common pleas has been used for a court of medium grade, corresponding nearly with county com-ts, so styled, in other states. The jurisdiction, territorially considered, is generally coextensive with a county; in some states, common pleas courts are established in every county; in others, only in particular counties, apparently those where extra-judicial business calls for an additional court. In New York, there was formerly a com- mon pleas court for every county; but they were replaced under the constitu- tion of 1846, except as to the court of common pleas for the city and county of New York, which stiU exists. Court of common pleas for the city and county of ITevir "STork, is the oldest judicial tribunal in the state. Under the name of "mayor's court," it existed from early colonial times ; and it continued to be known by that name until 1821. At that date, as the mayor of the city, by whom the court was formerly held, had long since ceased to preside in it, the name was changed. The organization and pow- ers of this court were remodelled, with those of the other courts, under the consti- tution of 1846. It has the same jurisdic- tion in civil actions as is possessed by the New York superior court ; and, in addition, has power to entertain certain special pro- ceedings, and to hear and determine appeals from the inferior local courts of the city, — the marine court and district courts. For- merly, its decisions on these appeals were final ; but it now is authorized to permit an appeal to be taken from its determination in these cases to the court of appeals. From 1846 to 1870, the common pleas was composed of three judges. In 1870, three more judges were added. Its business is transacted at special and general terms, organized on the same general plan with the supreme court and of the New York superior court. As it has full power, both legal and equitable, in actions properly brought before it, and its decisions at gen- eral term are only reviewable upon appeal to the courts of appeals, it is considered, in respect to actions of which it has jurisdic- tion, as a court of co-ordinate authority with the supreme court. 1 Abb. N. Y. Dig. xi. For a full history of the court, see 1 jB. D. Smith, xvii. COURT OF CONSCIENCE. See Court of Requests. COURT FOR CONSIDERATION OF CROWN CASES RESERVED. This court was established by Stat. 11 & 12 Vict. ch. 78, passed in 1848, being composed of the judges of the superior courts of Westminster, or such of them as are enabled to attend, for the pur- pose of deciding any question of law reserved for their consideration in the form of a special case by any judge or presiding magistrate in any court of oyer and terminer, jail delivery, or COURT 312 COURT quaiter sessions, before which a prisoner was found guilty by verdict. 4 Steph. Com. 442. COURT OF CONVOCATION. See Convocation. COURT FOR THE CORRECTION OF ERRORS. A name formerly used in some of the United States, e.g. New York and South Carolina, as the title or part of the title of a court of appellate jurisdiction. See Court of Impeach- ment. COURT OF COUNTY PALATINE. According to Jacob and Tomlins, (voc. county) , the counties of Chester, Dur- ham and Lancaster were called counties palatine; and Durham and Lancaster had, each, distinct courts of law and equity; while Chester had a court of mixed jurisdiction, which has been, however, abolished. COURT OF DELEGATES. A tri- bunal composed of delegates appointed by royal commission, and formerly the great court of appeal in all ecclesias- tical causes. The powers of the court were, by 2 & 3 Wm. IV., ch. 92, trans- feri-ed to the privy council. A commis- sion of review was formerly granted, in extraordinary cases, to revise a sentence of the court of delegates, when that court had apparently been led into ma- terial error. Brown. COURT FOR DIVORCE AND MATRIMONIAL CAUSES. The name of an English court established in 1857 by the divorce act of that year (20 & 21 Vict. ch. 85), of which the judges were the lord chancellor and the judges of the superior courts at West- minster, together with the judge of the probate court; the last-named judge being the judge in ordinaiy of the di- vorce court. To this court was trans- ferred the matrimonial jurisdiction of the ecclesiastical courts, together with the power, previously exercised by pri- vate acts of parliament, to grant di- vorces a vinculo in certain cases. And, by Stat. 21 & 22 Vict. ch. 93, persons might apply to this court for a declara- tion of their legitimacy, or of the valid- ity of the marriages of their fathers and mothers, or of their grandfathers and grandmothers; or for declaration of their own right to be deemed natural- born subjects. 2 Steph. Com. 239. By the supreme court of judicature act, this court is merged in the high court of justice. ' COURT OF EQUITY. See Court of Chancbkt. COURT OF ERRORS. The title employed in several of the states to designate a court chiefly, often exclu- sively, of appellate jurisdiction, and constituting the court of last resort in the state, though subject, in constitu- tional cases, to review in the supreme court of the United States. COURT OF EXCHEQUER. The name of one of the three superior courts of common law, which for so long time existed in England ; this being the lowest of the three in rank. It was of very ancient origin (see Courts, subd. Courts of England), being created prin- cipally to order the revenues of the crown, and to recover the king's debts and duties. It derived the name ex- chequer from a checked cloth, resem- bling a chess-board, which covered the table, and on which, when certain of the king's accounts were made up, the suiQS were marked and scored with counters. The exchequer consisted of two divi- sions, — the receipt of the exchequer, which manages the royal revenue, and the court, or judicial part. This court originally had jurisdiction of cases in- volving injury to the revenue; but the privilege of suing and being sued in this court was early extended to persons who were in account with the crown, on the theory that the remedy thus ac- corded them enabled them better to meet their obligations and balances; and, later, personal actions generally were embraced, upon a fiction that the plaintiff was indebted to the king, and needed a recovery upon his demand against the defendant, to enable him to pay his taxes, &c. The court of ex- chequer was, until 1842, subdivided in- to a court of equity and a court of com- mon law; but, by the Stat. 5 Vict. ch. 5, all the equity jurisdiction of the court of exchequer was transferred to the court of chancery. This court con- sisted, moreover, of a revenue side, and of a common-law or plea side. On the COURT 313 COURT revenue side, it ascertained and en- forced the proprietary rights of the crown against the subjects of the realm ; on the plea side, it administered redress between subject and subject in all ac- tions personal. 3 Bl. Com. 44-46; 3 Steph. Com. 338-340. By the judicature act, the business of the court of exchequer has been transferred to the exchequer division of the high court of justice. COURT OF EXCHEQUER CHAMBER. The name of a former English court of appeal, intermediate between the superior courts of common law and the house of lords. When sit- ting as a court of appeal from any one of the three superior courts of common law, it was composed of judges of the other two courts. 3 Bl. Com. 56, 57; 3 Stepk. Com. 333, 356. By the su- preme court of judicature act, the juris- diction of this court is transferred to the court of appeal. The court of exchequer chamber was first erected by Stat. 31 Edw. III. ch. 12, to determine causes upon writs of error from the common-law side of the court of exchequer. It was composed of the lord chancellor and lord treasurer, together with the justices of the king's bench and common pleas. By statute 27 Eliz. ch. 8, a second court of exchequer chamber, in imitation of this court, was formed, con- sisting of the justices of the common pleas, and the barons of the exchequer, before whom writs of error might be brought to review suits originally brought in the court of king's bench. (3 Bl. Com. 56.) Causes which the judges, on argument, find to be of great weight and difiioulty are some- times adjourned to this court before any judgment is rendered on them in the court below (4 Inst. 119). In the court of exchequer chamber there are no more than two return days in every term ; one, fte general affirmance day, being appointed by the judges to be held a few days after the beginning of every term, for the general affirmance or reversal of judg- ments ; the other, tlie adjournment day, is usually held a day or two before the end of every term. On the first of these days judgments are affirmed or reversed, or writs of error non pressed ; the intent of the latter is to finish sucli matters as were left undone at the former. On either of these days judgments may be affirmed or re- versed, or writs of error non pressed, on paying a fee extraordinary to the clerk of the errors, and setting down the cause for affirmance two days before the adjourn- ment day. Jacob. COURT OF GENERAL SES- SIONS. The title of a court in some of the states, chiefly of criminal juris- diction. In the county of New York the court of general sessions is held by a single judge, who may be either the recorder of the city and county, or the judge of the court of general sessions; and two branches of the court may be held at once. It has jurisdiction of all crimes and misdemeanors; also appel- late jurisdiction from the court of ses- sions. COURT OF HUSTINGS. Courts of hustings are mentioned in the char- ters of Great Yarmouth, Lincoln, York, and Norwich ; and the name is to this day given to the temporary courts held for the election of members of parlia- ment in every county and borough. But " com't of hustings," generally means the court of that name held within the city of London, before the lord mayor, recorder, and sheriffs. This court is the representative, within the city, of the ancient county court of the sheriff. It had exclusive jurisdiction in all real and mixed actions for the recovery of land within the city, except ejectment. But now that all real and mixed actions, except ejectment, are abolished, the jurisdiction of this court has fallen into comparative desuetude. (3 Bl. Com. 80; 3 Steph. Com. 293, note; Pulling Cust. Lond.) Mozley Sf W. COURT OF IMPEACHMENT. This term signifies a court authorized to try charges against a public officer, of malversation in office, where the prominent question is his removal from office, rather than his amenability to punishment. See Impeachment. By the United States constitution, the senate has the sole power to try all impeachments; and the chief justice presides. But we do not understand that the senate becomes a court in thus sitting, though it is often so described, but rather that it acts as senate in the exercise of a peculiar authority. In New York, before the constitution of 1846, there was a court for the trial of impeachments and correction of errors, in which the state senators, as such, par- ticipated, but which was a distinct court, and had jurisdiction of impeachment cases. The scheme of courts established by the constitution of 1846 embraces, COURT 314 COURT as the first on the list, the court for the trial of impeachments. Code of Pro. § 9. The common law Is not applicable to questions concerning the organization of a court of impeachment, but only to the trial ; the body that prefers, as well as the body that tries, the charges being unknown to the common law, and dissimilar to the British parliament. Adams v. Hillyer, 2 Kan. 17. COURT OF KING'S (or QUEEN'S) BENCH. The name of an English court of great antiquity and authority, for centuries the supreme court of com- mon law of the kingdom. It was the direct successor of the aula regia. Its name is derived from the fact that an- ciently the king in person sat in the court ; and it was always in theory held before the sovereign, its title changing to court of queen's bench during the reign of a queen. But although supposed to follow the person of the sovereign, it was in fact permanently fixed at West- minster, being the highest in rank of the three superior courts of common law there held. It was composed of a lord chief justice and four puisne or associ- ate justices, who were all, by virtue of office, the sovereign conservators of the peace and supreme coroners of the king- dom. The jurisdiction of the court, al- though originally only criminal in its nature, including trespasses, began at an early period to be extended, and gradually came to include also all per- sonal actions between subject and sub- ject at common law, and actions of ejectment. It had also extensive super- visory powers over inferior tribunals, and magistrates, corporations, &c. Its juris- diction and powers are transferred, by the judicature acts of 1873 and 1875, to the high court of justice created by those acts. Connected with the court of queen's bench and auxiliary thereto, was the practice coui-t, usually presided over by the puisne judges in rotation. The practice court, called also the bail court, heard and determined common matters of practice and ordinary motions for writs of mandamus 'prohibition, &c. The court of king's bench is so called because the king used formerly to sit in court in person, the style of the court still being coram ipso rege. During the reign of a queen it is called the queen's bench, and in the time of Cromwell, during the usurp- ation, it was styled the upper bench. This court consists of a chief justice and four puisne judges, who are, ex officio, the sov- ereign conservators of the peace, and su- preme coroners of the land. Although the king used to sit in this court himself, and still Is supposed so to do, he did not, neither by law is he empowered to, determine any cause or motion, but by the mouth of his judges, to whom he has committed the whole of his judicial authority. It has been said that Henry III. sat in person with the justices in banco regis several times, being seated on a high bench, and tlie judges on a lower one at his feet ; this, however, is doubtful. Edward IV. sat three days, in the second year of his reign, wholly to see, as he was young, the mode of administering justice. James I., it is also said, sat there for a similar reason. (3 Bl. Com. eh. i.) It is said that in Westminster Hall, under the modem erections for the courts of king's bench, and chancery, there still re- main a stone bench or table and a stone chair, used by some of our ancient kings, when they sat in parliament, or for the ad- ministration of justice. This court, which is the remnant of the ancient aula regia, is not, nor can it be, from its nature and constitution, fixed to any certain place, but may follow the king's person wherever he goes. It hath, indeed, for some centuries past, usually sat at Westminster, this being an ancient palace of the crown, but might remove with the king to York or Exeter, if . he thought proper to so command. After Edward I. had conquered Scotland, it usually sat at Eoxburgh. Toward the latter end of the Norman period, the aula regis, which was, before, one great court, presided over by a justiciar, was divided into four distinct courts : the court of chancery, king's bench, common pleas, and exchequer. After the establishment of the common pleas, which was for the express purpose of determining civil suits, the court of king's bench was accus- tomed, in ancient times, to be especially ex- ercised in all criminal matters and pleas of the crown, leaving the judging of private contracts and civil actions to the common pleas and other courts. The court has al- ways retained a supreme original jurisdic- tion in all criminal matters. Tomlins. This court, upon the crown side, took cognizance of all criminal causes from higli treason down to the most trivial misde- meanor or breach of the peace. Into it, also, indictments from all inferior courts might be removed by writ of certiorari, and be tried. On the plea side it exercised a general jurisdiction over all actions between subject and subject, with the exception of real actions and suits concerning the reve- nue. Its jurisdiction in civil actions was formerly limited to trespass or injuries said to have been committed m et armis, but by means of fictions it took jurisdiction over all personal actions, and continues to ex- COURT 315 COURT ercise it under 2 Wm. IV., ch. 39, which abolished the Actions. Wharton. The court keeps all inferior jurisdictions within the hounds of their authority, and may either remove their proceedings to be determined before itself, or prohibit their progress below. It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, and in every case where there is no other specific remedy, it protects the liberty of the subject by speedy and sum- mary interposition. It takes cognizance both of criminal and civil causes ; the for- mer in what is called the crown side, or crown office ; the latter, in the plea side of the court. (3 Bl. Com. 41-44; 4 Id. 265- 267.) Modey^ W. COUBT-LEET. The name of an English court of record held once in the year, and not oftener, within a particular hundred, lordship, or manor, before the steward of the leet ; being the king's court granted by charter to the lords of those hundreds or manors. Its office was to view the frankpledges, — that is, the freemen within the liberty ; to present by jury crimes happening within the jurisdiction ; and to punish trivial misdemeanors. It has now, however, for the most part, fallen into total desuetude ; though in some manors a eourt-leet is still periodically held for the transaction of the administrative business of the manor. (4 Bl. Com. 273, 274; 4 SUph. Com. 321-323.) Modey ^ W. COURT OF THE LORD HIGH STEWARD. The name of an English court instituted for the trial, during the recess of parliament, of peers indicted for treason or felony, of for misprision of either. Into this court indictments against peers of parliament are removed by certiorari. The office of lord high steward is created in modem times, when occasion requires, and for the time being, only; and he, with such of the temporal lords as may take the prop- er oath, and act, constitute the court ; he sitting, substantially, as judge; they as jurors. COURT OF MARSHALSEA. A court which had jurisdiction of all trespas- ses committed within the verge of the king's court, where one of the parties was of the royal household ; and of all debts and con- tracts, when both parties were of that estab- lishment. (3 Bl. Com. 75.) It was abol- ished by 12 & 13 Vict. ch. 101, § 13. (3 Steph. Com. 315, note.) Mozley ^ W. The marshalsea court, or court of the marshal of the king's household, was origi- nally held before the steward and marshal, and was instituted to administer justice between the king's domestic servants, in order that they might not be drawn into other courts, and thus deprive the king of their services. This court is now merged into the palace court (curia palatii), which was established by Charles I., to be held before the steward of the household and knight marshal, and the steward of the court or his deputy, with jurisdiction in all manner of personal actions arising between any parties within twelve miles of the king's palace at Whitehall. The court is now held once a week, together with the ancient court of marshalsea, in the borough of Southwark, and a writ of error lies from thence to the court of king's bench. Hott- house. COURT-MARTIAL. Courts-mar- tial, as organized under the laws of the United States, lack somewhat of the permanent character and established place of session which ordinarily char- acterize a "court." Yet they are said to be judicial tribunals constituted by statutory authority, and organized in pursuance of statutory regulation, for the administration of a great and im- portant department of jurisprudence, — the law military. They are, in the strictest sense, courts of justice, having jurisdiction of a large, and, in some re- spects, distinct community, and taking judicial cognizance of the duties and obligations which the citizen assumes when he enters, by enlistment or other- wise, into the military service of the country. They are, moreover, not only legally constituted courts of justice, but also courts whose judgments in cases fitted for their consideration and deter- mination are as final, conclusive, and authoritative as those of any judicial tri- bunal of the country. Records of Com'ts- Martial, 11 Op. Alt.-Gen. 137. The several states do not maintain armies ; but in the exercise of the power to organize a militia they may and do authorize courts-martial, whose jurisdic- tion and powers are, however, of minor importance. In England, courts-martial are said to be two: 1. A court having jurisdiction to try and punish offences against the provisions of the mutiny act, and the articles of war made by the sovereign in pursuance thereof. Courts of this class are either general, detachment-general, district or garrison, regimental or de- tachment; of these, only the first two can try a commissioned officer, or pass sentence of death or penal servitude. COURT 316 COURT 2. A court erected under the acts for the government of the navy, for the punish- ment of offences against naval discipline. A court for the trial of offences against naval discipline is called a naval court- martial. 2 Steph. Com. 589-598; Sim- mons Courts-Martial. The authority of the court of chivalry, first established by the common law, and confirmed by several statutes, was never objected to, even in criminal cases, until the post of high constable was laid aside ; from that time until the revolution there does not appear to have been any court for the administration of martial law ; and the au- thority of the court of chivalry, as held from time to time by the earl-marshal, was exercised only in civil matters. During this time there are instances of courts or commissions erected for the administration of martial law; though illegal, they were sustained from necessity. And the two houses of parliament, in the beginning of their rebellion against Charles I., passed an ordinance (evidently unconstitutional), in 1644, appointing commissioners to execute martial law. This ordinance was adopted as a model for the mutiny act passed after the revolution. It was not till 1689 that a regular act was passed for punishing mutiny and desertion by courts-martial. This act, originally temporary, has been annually re- newed. Courts-martial are now held by the same authority as the other courts of judi- cature of the kingdom ; the crown has the prerogative of clemency or pardon, but can no more add to or alter the sentence of a court-martial than he can a judgment given in the courts of law. Jacob. COURT OF ORDINARY. A name applied in some of the United States, as Georgia, to a court which has juris- diction of the probate of wills and the administration of estates and decedents. See Ordinakt. COURT OF OYER AND TER- MINER. In England, courts for the examination and trial of persons accused of crime, held by commissioners ap- pointed and authorized under the great seal, are called, from the terms of the commission, courts of oyer and terminer, and general jail delivery. Under the two commissions, they possess the broad- est criminal jurisdiction. In the United States, the name court of oyer and terminer, sometimes with various additions, is in general use as the title, or part of the title, of a state court of criminal jurisdiction, or of the crimi- nal branch of a court of general jurisdic- tion. COURT OF PECULIARS. The name of an English ecclesiastical court, a branch of the court of arches {q. v.), of more limited territorial jurisdiction. The court of peculiars has jurisdiction over all those parishes, dispersed through the province of Canterbury, which are ex- empt from the ordinary's jurisdiction, and subject to the metropolitan only. Modey COURT OF PIEPOUDRE. The name of an English court of special jurisdiction, incident to every fair or market, which has long since fallen into disuse. Its jurisdiction vras both civil and criminal, but extended only to mat- ters occurring at the particular fair or market. A court of record incident to every fair and market, of which the steward of him who owned the toll of the market was the judge. Its jurisdiction extended to all commercial injuries done in that fair or market, and not in any preceding one. Erom this court a writ of error lay in the nature of an appeal to the courts at Westminster. Mozley ^ W. The court of piedpoudre was so called either from the dusty feet of the suitors or because justice is there done as speedily as dust falls from the foot, or as derived from the old French pied puidreaux referring to pedlers or petty chapmen, such as resorted to fairs and markets. Wharton. COURTS OF PRINCIPALITY OF WALES. A species of private courts of a limited, though extensive, jurisdiction, which were erected all over the country, principally by Stat. 34 & 35 Hen. VIII., ch. 26. These courts have all been aboUshed by Stat. 11 Geo. IV., and 1 Wm. IV.; the principality being divided into two circuits, which are visited by the judges in the same manner as in England, for the purpose of hearing and determining those causes which are ready for trial. 3 Bl. Com. 77. COURT OF PROBATE. The name of an English court established in 1857, under the probate act of that year (20 & 21 Vict. ch. 77), to which court was transferred the testamentary jurisdiction of the ecclesiastical courts. 2 Steph. Com. 192. By the judicature acts, this court is merged in the high court of justice. In many of the United States, court of probate, or probate court, is used as the title of the court having general probate jurisdiction; that is, to take proof of wills, to issue letters testamen- tary, letters of guardianship and of administration, to superintend the ad- COURT 31T COURT ministration of estates and tlie account- ings of representatives and trustees, and many cognate matters. The same jurisdiction is exei-cised in other states by orphans' or surrogates' courts. To this strictly probate jurisdiction is often added a limited jurisdiction in civil or criminal actions. Courts under the title of court of probate, or probate court, exist in Alabama, Arkansas, Cal- ifornia, Connecticut, Kansas, Maine, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, North Caro- lina, Ohio, Rhode Island, South Caro- lina, Tennessee, aud Vermont. COURT OF REQUESTS. 1. The name of an ancient English court of equity of the same nature with the court of chancery, but inferior to it ; of •which the lord privy seal was chief judge, assisted by the masters of re- quests. Having assumed great power, so that it became burdensome, it was abolished by Stat. 16 & 17 Car. I. ch. 10. 2. Court of requests (otherwise called court of conscience) is the title of courts for the recovery of small debts formerly established by acts of parliament in various parts of the kingdom of Eng- ' land, but for the most part abolished by Stat. 9 & 10 Vict. ch. 95. COURT OF SESSION. The name of the highest court of civil jurisdiction in Scotland. It was composed of fifteen judges, now of thirteen. It sits in two divisions, the lord president and three ordinary lords form the first division, the lord justice clerk and three other ordinary lords form the second division. There are five permanent lords ordinary at- tached equally to both divisions ; the last appointed of whom officiates on the bills, i. e. , petitions preferred to the court dur- ing the session, and performs the other duties of junior lord ordinary. The cham- bers of the parliament house in which the first and second divisions hold their sit- tings are called the inner house; those in which the lords ordinary sit as single judges to hear motions and causes are collectively called the outer house. The nomination and appointment of the judges is in the crown. Wharton. COURT OF SESSIONS. In New York, except in the county of that name, the court of special sessions is composed of the county judge, who pre- sides, and two associates, elected for that purpose, and styled justices of ses- sions. The jurisdiction is solely crimi- nal, and extends to the trial of misde- meanors, and, generally, to all criminal matters formerly cognizable by the court of general sessions of the peace of the county. These courts are held at the same time and place at which county courts are held. In the county of New York there are two courts of sessions, — the court of special sessions and the court of general sessions. The former is composed of and held by any three of the police justices of the city, and has exclusive jurisdiction of all misdemeanors, unless the accused elects, on his examination before the committing magistrate, to be tried in the court of general sessions. The court of general sessions is held by a single judge, who may be either the recorder of the city and county, or the city judge, or the judge of the court of general sessions; and two branches of the court may be held at the same time. Its jurisdiction extends to all crimes and misdemeanors whatsoever, including crimes punishable with death or impris- onment for life. It has also appellate jurisdiction from the court of special sessions. COURT OF STANNARIES. The name of an English court established in Devonshire and Cornwall, for the ad- ministration of justice among the miners and tinners, and that they may not be drawn away from their business to at- tend suits in distant courts. The stan- nary court is a court of record, with a special jurisdiction. All tinners and laborers in and about the stannaries, (i. e. the mines and works in Devon and Cornwall, where tin metal is dug and purified) may sue and be sued in this court in all matters arising within the stannaries, excepting pleas of land, life, and member. But since the Stat. 9 & 10 Vict. ch. 95, the plaintiff may choose between the stan- nary court and the county court of the district in which the cause of action COURT 318 COVENANT COURT OF STAR CHAMBER. This was an English court of very ancient origin, but new-modelled by Stats. 3 Hen. yil ch. 1, and 21 Hen. VIII. ch. 20, consist ing of divers lords, spiritual and temporal, being privy councillors, together with two judges of the courts of common law, with- out the intervention of any jury. The ju- risdiction extended legally over riots, per- jury, misbehavior of sheriffs, and other mis- demeanors contrary to the laws of the land ; yet it was afterwards stretched to the as- serting of all proclamations and orders of state, to the vindicating of illegal commis- sions and grants of monopolies ; holding for honorable that which it pleased, and for just that which it profited, and becoming both a court of law to determine civil rights, and a court of revenue to enrich the treas- ury. It was finally abolished by Stat. 16 Car. I. ch. 10, to the general satisfaction of the whole nation. Mozley 8f W. See an elaborate and interesting account, ' 12 Am. Law Bev. 21. COURTS OF UNIVERSITIES. The chancellor's courts in the universities of England used to enjoy the sole jurisdic- tion, in exclusion of the king's courts, over all civil actions and suits whatsoever, when a scholar or privileged person was one of the parties, excepting in such cases where the right, of freehold was concerned. These privileges were granted in order that the students might not be distracted from their studies by legal process from distant courts. And these university courts were at liberty to try and determine either according to the common law of the land, or their own local customs, at their discretion. These privileges are still in part exercised at Oxford, but by a recent private statute have been taken away from Cambridge. In pursuance of Stat. 17 & 18 Vict. ch. 45, and 25 & 26 Vict. ch. 26, § 12, the proced- ure is as in the county courts, and the rules of the statute law of England have taken the place of the rules of the civil law. Brown. jCOURT -ROLLS. The rolls of a manor, whereon are entered all surrenders, wills, grants, admissions, and other acts re- lating to the manor. They are considered to belong to the lord of the manor, and are kept by the steward as his agent ; but they are in the nature of public books for the benefit of the tenants as well as the lord, so that it is a matter of course for the courts of law to grant an inspection of the court- rolls in a question between two tenants. Scriven Copyholds. COURTS OF WESTMINSTER HALL. This is a general, popular ex- pression, frequent in English books, designating, collectively, the higher English courts. Anciently the court travelled with the king. See Coukts. But as this was inconvenient to suitors, witnesses, and jurors, a provision was included in Magna Charta looking tow- ards a permanent establishment of the principal tribunals. The palace of Westminster Hall became the site. The expression, superior courts at West- minster Hall, included, before the changes introduced by the judicature act, the court of chancery, the king's bench, common pleas, and exchequer. See Brown. COUSIN. In English writs, commis- sions, and other formal intruments issued by the crown, signifies any peer of the de- gree of an earl. The appellation is as an- cient as the reign of Henry IV., who, being related or allied to every earl then in the kingdom, acknowledged that connection in all his letters and public acts ; from which the use has descended to his successors, though the reason has long ago failed. (1 Bl. Com. 398 ; 2 Steph. Com. 603, 604.) Mox- ley Sr W. COVENANT. 1. The general sig- nification of the word covenant includes any kind of promise or contract, whether made verbally or in writing. In its technical sense a covenant is an agree- ment or promise in writing, under seal, between two or more persons, whereby one or more of them promises the per- formance or non-performance of certain acts, or stipulates that a certain state of things does or does not, or shall or shall not, exist. It is distinguished from a simple contract by being under seal. The word is not usually employed as descriptive of any deed complete in itself, but is applied to a clause of agree- ment contained in an instrument under seal. To create an express covenant, the word covenant is the proper term, but it is not essential. Such words as "I agree," "I bind myself " and the usual language of a bond have been held suffi- cient. And, in general, any words plainly showing the intent of the parties so to bind themselves raise an express covenant. Besides express covenants, a covenant may, in proper cases, be im- plied, that is, raised or impiited by law, upon inference of an intent which is not plainly declared by the instrument. The distinction between dependent and independent covenants is of import- ance. If two or more covenants in an instrument are so related that a party COVENANT 319 COVENTRY cannot claim performance of one, unless he has performed or tenders performance of another, the covenants are called de- pendent. If the obligation of a cove- nant rests upon its own terms, irre- spective of performance or non-perfor- mance of others, though in the same instrument, it is called independent. Covenants are often mentioned as real covenants, or covenants running with land. These are such as relate to or are connected with real property, so that they bind whoever, successive- ly, may acquire the land, though he never made the covenant. The most important class of real covenants com- prises those termed covenants for title, the purpose of which is to assume the full enjoyment of what the deed pur- ports to convey. These covenants are, respectively, the covenant of seisin, — that the grantor is seised of a specified estate in the premises conveyed; the covenant of right to convey, — that the' grantor has a perfect right to convey the premises ; the covenant for quiet enjoyment, — that the grantee shall quietly possess and enjoy the premises without interrup- tion; the covenant against incum- brances, — that there are no incum- brances upon the premises other than such as may be specified ; the covenant for further assurance, — that the grant- or, his heirs, &c., will execute any fur- ther conveyance or assurance required to effect the purpose of the deed; and, in the United States, the covenant of warranty, which is more commonly used than any of the others, though not used in England, — that the grantor will warrant and for ever defend the title of the grantee to the premises conveyed. Many covenants ai'e distinguished ac- cording to the specific purpose of each. Such are covenants to convey; covenants not to sue ; covenants against nuisances in conveyances, leases, &c. ; and cove- nants for renewal in leases. Covenant is a contract, and is a writing obligatory, or parol promise, according as it is sealed or not. Magee v. Fisher, 8 Ala. 320. The following are the rules for deciding whether in any given case a covenant is dependent or independent : 1. If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to, or may, happen be- fore the thing which is the consideration for the money or other act is to be per- formed, an action may be brought for the money, or to enforce doing the other act, be- fore the performance of the consideration. 2. Where a covenant goes only to part of the considerations on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant ; and an action may be maintained for a breach of the covenant on the part of the defend- ant, without any averment of performance in the declaration. 3. Where two acts are to be done at the same time, neither party can maintain an action against the other without showing performance of, or an offer to perform, his part, although it be not defined which of them is obliged to do the first act ; and tliis third rule applies more especially to all cases of sale. Broum. Covenants are either dependent, concur- rent, or mutual and independent. The first depends on the prior performance of some act or condition, and until the condition is performed the other party is not liable to an action on his covenant. In the second, mutual acts are to be performed at the same time ; and if one party is ready, and oSers to perform his part, and the other neglects or refuses to perform his, he who is ready and offers has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. The third sort is where either party may recover damages from the other for the injuries he may have received by a breach of the covenants in his favor; and it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. Bailey v. White, 3 Ala. 330. A covenant real has for its object some- thing annexed to, or inherent in, or con- nected with, land or other real property, and runs with the land, so that the grantee of the land is invested with it, and may sue upon it for any breach happening in his time. Davis ti. Lyman, 6 Conn. 249. 2. A form of action at common law to recover damages for the breach of a contract under seal. This is the proper remedy, under common-law practice, in all cases of breach of a promise made under seal where the damages are unli- uidated; in such cases, neither assump- sit nor debt can be maintained. It is also a concurrent remedy with debt in some cases ; but is said never to be con- current with assumpsit. COVEN ABLE . Is a French word sig- nifying convenient or suitable ; as, covena- bly endowed. It is anciently written con- venable. Termes de la Ley, COVENTRY ACT. A notable Eng- COVERTUEE 320 CREDIBLE lish statute, the 22 & 23 Car. II. ch. 1, punishing mayhem. It derived its name from being occasioned by an assault on Sir John Coventry. It has been super- seded by later legislation on the same subject. COVERTURE. Marriage, in its sense of a status, not in that of a cere- mony; the condition of being married. It is used almost exclusively of -woman. Covert, or couverte: married. Origi- nally, covert meant covered, protected, sheltered; but there is no occasion for its use in this sense in modern law. Coverture is when a man and woman are married together ; now whatsoever is done concerning the wife in the time of the con- tinuance of this marriage is said to be done during the coverture, and the wife is called a woman covert, and thereby is disabled from contracting with any one to the pre- judice of herself or her hnsband, without his consent or privity, or, at least, without his allowance and confirmation. Termes de la Ley. COVIN. A secret assent determined in the hearts of two or more to the prejudice of another ; as if tenant for life or tenant in tail secretly conspire with another, that the other shall recover against the tenant for life lands which he holds, &c., to the prejudice of the one in reversion ; or, if an executor or administrator permit judgments to be entered against him by fraud, and plead them to a bond, or any fraudulent assignment or conveyance be made, the in- jured party may plead covin and obtain re- lief. Termes de la Ley. Covin has been defined by Lord EUenbor- ough as being a contrivance between two persons to defraud or cheat a third. Mix V. Muzzy, 28 Conn. 166. COW. A heifer, twenty months old, and which has not begun to give milk, may be exempt from execution as a cow. Car- ruth V. Grassie, 11 Gray, 211. Where the writ in replevin described the property as a heifer, and the certificate of appraisement styled it a cow, held, that the variance was not material. Pomeroy v. Trimper, 8 AlUn, 398. In a penal statute which mentions both cows and heifers, they should be discrimi- nated ; and by the term cow must be under- stood one that has had a calf. Bex v. Cook, 1 Leach Cr. Gas. 123 ; 2 East PI. Cr. 616. CRAFT. The expression, " bay or river craft, or other boat," in the code of Virginia, includes steamboats of five hun- dred tons burden. And the word craft in- cludes all kinds of sailing vessels. The Wenonah v. Bragdon, 21 Chatt. 686. A small pleasure boat, without deck, pro- pelled by a small steam engine, and run occasionally by its owners for pleasure only, was held not within the provisions of the United States steam inspection laws, which require every ferry-boat, canal-boat, yacht, " or other small craft of light char- acter propelled by steam," to be inspected. United States v. The MoUie, 2 Woods, 318. CRANAGE. A liberty to use a crane for drawing up goods and wares of burden from ships and vessels, at any creek of the sea, or wharf, unto the land and to make a profit of doing so. It also signifies the money paid and taken for the service. Tondins. CRASSA NEGLIGENTIA. Gross negligence. See Negligence. CREATE. To create a charter or a corporation is to make one which never ex- isted before, while to renew one is to give vitality to one which has been forfeited or has expired ; and to extend one is to give an existing charter more time than origi- nally limited. Moers v. City of Beading, 21 Pa. St. 188. The continuance of an old charter is not the creation of a new corporation, and does not infringe a constitutional provision re- stricting the creation of new corporations, but recognizing and continuing existing ones. People v. Marshall, 1 CHlm. 672. An act remedying a technical defect in the organization of a corporation, e. g in- sufficiency in the proof or acknowledgment of a certificate of organization of a banking association formed under a general statute, is not an act to create a corporation. Sy- racuse City Bank v. Davis, 16 Barb. 188. CREDENTIALS. Papers which give a title or claim to confidence; par- ticularly the letters of commendation and power given to an ambassador or public minister by the power which sends him to a foreign court. CREDIBLE. Worthy of belief. Credibility: trustworthiness; the qual- ity of being entitled to belief. i^T^O^t^, In general usage, competency ana credibility of witnesses are quite dis- tinct. Credibility, as contrasted with coinpetency, implies that the witness is one who may testify, and relates to the degree of belief with which his state- ments are to be received. But credible is sometimes used in the sense of com- petent. Credible witness, in Conn. Eev. Stat. tit. 5, § 54, providing for the certification of copies of records, means a witness giving testimony under the sanction of the witnes- ses' oath, and who may be cross-examined as to the existence of the record and the ac- curacy of the copy. Dibble v. Morris, 26 Conn. 416. As used in the Georgia statute of frauds, the expression imports that the witnesses are not to be idiots, lunatics, or convicts. Hall 0. Hall, 18 Ga. 40. CREDIT 321 CREDITOR Credible is sometimes synonymous with competent. Garland v. Crow, 2 Bailey, 24. By credible witness, in Mass. Stat. 1783, ch. 24, relative to attestation of wills, is meant competent witness. Hawes v. Hum- phrey, 9 Pidc. 350 ; s. p. Amory v. Fel- lowes, 5 Mass. 229 ; Sears v. Dillingham, 12 Id. 358. As used in a statute (Mass. Stat. 1792, ch. 32), — requiring that a will disposing of real property shall be attested and sub- scribed by three or more credible witnesses, — credible is equivalent to competent, it is not construed in the loose popular sense, as meaning a person of good moral charac- ter and reputation in fact, and personally worthy of belief ; but as meaning a person entitled to be examined in a court of jus- tice, though subject to have his actual credit weighed and considered by the court or jury. The meaning of the statute is that the will must be attested by three per- sons competent to be examined as wit- nesses in a court of justice, upon the ques- tions whether the will was duly executed, and by a person of sound and disposing mind. Haven v. Hilliard, 23 Pick. 10. CREDIT. Confidence or trust re- posed in one's ability and intention to pay vfhat he may promise. Also, a term allowed for payment of a price; usually spoken of the price of goods sold. Credits : the various items in ac- count which are due to the person con- cerned, in distinction from debits, which are due from him. Creditor seems to mean one who has given credit, aiid has become entitled to payment in conse- quence; but is used for holders of de- mands which perhaps did not originate in giving credit. Tiius judgment cred- itor is one who has recovered and is en- titled to payment of a judgment; and whether the judgment was founded on a commercial indebtedness, or on a tort, or otherwise, would make no difference. As to letter of credit, see Letter. The credit of an individual is the trust reposed in him by those who deal with him, that he is of ability to meet his engage- ments ; and he is trusted, because through the tribunals of the country he may be made to pay. The credit of a government is founded on a belief of its ability to com- ply with its engagements, and a confidence in its honor, that it will do that voluntarily which it cannot be compelled to do. Owen V. Branch Bank of Mobile, 3 Ala. 258. Credit is the capacity of being trusted. Dry Dock Bank v. American Life Ins. & Trust Co., 3 N. Y. 344, 356. In an enlarged and commercial sense, credit implies reputation, confidence; a basis upon which its possessor may trade 21 continuously without immediate payment. Emdge v. Judson, 24 N. Y. 64, 71. CREDITOR. Is he that trusts another i,(rUAAA with any debt, be it in money or wares. iL_.f,^ {Cowel.} But the word is used in a larger-*'?/''*^ sense to signify any one who has a legal- -i (yw'' claim against another. Mozhy SfW. L^ Where a deed contains a general cove- ^^ nant of warranty, and there is, at the time of its execution, a paramount outstanding title, by which the vendee may be, or act- ually is, afterwards evicted, he is a creditor of the covenantor, within the meaning of the statute of frauds (Clay's Dig. 254, § 2), from the execution of the deed. Gannard 1'. Eslava, 20 Ala. 732. The use of the words "creditor." and " debtor," in a statute providing that in ac- tions to recover back usurious interest paid the debtor (the creditor being living) may be a witness, does not confine the enact- ment to eases where the relation of debtor / and creditor actually exists at the time of trial. They are used as a designation of persons merely. Although the relation has been wholly dissolved, the person who was a debtor in the loan in question may testi- fy. GifEord v. Whitcomb, 9 Cush. 482. Creditors, in the provisions of 2 Eev. Stat. 136, §§ 5, 6, — designating the creditors of a vendor of chattels, who may avail themselves of the neglect of a mortgagee to take and hold possession, — includes cred- itors who become such at any time while the possession still remains in the mort- gagor; and it embraces simple contract creditors, although these cannot assert their rights until they have obtained judgment, and, as to personal property, execution. And the holder of a promissory note for value may be a creditor within the above- mentioned provisions, although the note does not become due until after the mort- gagor's possession has terminated. Thomp- son V. Van Vechten, 5 Abb. Pr. 458. But compare 6 Bosw. 873 ; 27 N. Y. 568. Creditor's bill, or suit. The term creditor's bill is applied to a bill in equity, filed by one or more creditors of a deceased person in behalf of himself or themselves and all other creditors who shall come in under the decree, for an account of the assets and a due set- tlement of the estate of the deceased. The suit commenced by such a bill is commonly termed a creditor's suit. The principle upon which the proceeding is sustained is, that as executors and ad- ministrators have great power of prefer- ence at law, courts of equity ought, ac- cording to the maxim that equality is equity, to interpose, upon the applica- tion of any creditor, by such a bill, to secure a distribution of the assets, with- out preference to any one or more cred- CREEK 322 CRIME iters ; and the decree is usually framed to efEect this purpose. These terms are also used, in the United States, to designate proceedings to enforce the security of a judgment creditor against the property or interests of his debtor, sustained upon the theory that the judgment is in the nature of a lien upon such property or interest, such as may be enforced in equity. The ob- ject sought is either to remove obstruc- tions to the operation of the legal rem- edy by execution, or to reach property not liable to execution; and, to accom- plish this, a judgment creditor may compel a discovery and account, either from the debtor or a third person; may restrain the transfer of property; and may obtain a satisfaction of the judg- ment, even out of property not liable to execution; the grounds and the nature of the relief afforded vai-ying under the statutes and practice of different states. In "many of the states, the creditor's suit has been superseded by a proceed- ing in the original action supplementary to the execution. Creditor's bill, as used in Illinois Chan- cery Code, §§ 36, 37, denotes a bill by which a creditor seeks to satisfy his debt out of some equitable estate of the defendant, which is not liable to a levy and sale under an execution at law ; not a naked bill to remove a fraudulent conveyance out of the way of his execution. Sewmau ». WiUetts, 52 lU. 98. CREEK. Imports a recess, cove, bay, or inlet in the shore of a river, and not a separate or independent stream ; though it is sometimes used in the latter meaning. Schermerhorn v. Hudson Eiver R. E.. Co., 38 A^. Y. 103. CREW. The word crew, as used in the act of congress of March 3, 18-35, § 3, — punishing cruelty by a master or other officer, towards the crew, — includes and protects the officers as well as the common seamen. Whenever, in a statute, the words master and crew occur in connection with each other, the word crew embraces all the officers as well as the common seamen. United States v. Winn, 3 Sumn. 209, 212 ; 1 Law Rep. 63. The word crews, in the piracy act of 1819, ch. 200, includes the master and offi- cers as well as the sailors. Millaudon v. Martin, 6 Rob. (La.) 534. CRIER. An officer of a court whose duty it is to proclaim the opening and adjournment; to call the names of par- ties, jurors, and witnesses as they are successively wanted; and perform other similar services. CRIME. An act or omission forbid- den by law, under threat of punishment; an offence; a wrong considered in its aspect of a violation of the rights of the community. In a narrower sense, crime is employed to designate the more aggravated offences, and misdemeanor the lesser ones ; but the better usage is to consider crime as including misde- meanor. But the use of the terms crime, offence, felony, and mi.sde- meanor is far from uniform, even among legal writers, ^f TA/COj^Sil : v/ h Crimes are divided into mala in se and mala prohibita, according as their gruilt may be known by natural law, or is only created by positive prohibition. They are called felonies or misde- meanors, according to their grade or degree of guilt; measured in various jvu-isdictions by a statutory line of divi- sion. See Felont; Misdemeanok. A crime is an act committed or omitted, in violation of a public law, either forbid- ding or commanding it ; a breach or viola- tion of some pubUc right or duty due to a whole community, considered as a conimu- nity in its social aggregate capacity, as distinguished from a civil injury. " Crime " and " misdemeanor," properly speaking, are synonymous terms ; though in common usage crime is made to denote such offences as are of a deeper and more atrocious dye. 4 Bl. Com. 5. A crime, as opposed to a civil injury, is the violation of a right, considered in refer- ence to the evil tendency of such violation, as regards the community at large. 4 . Morris, 1 Dall. 124. The words " lawful money," " currency," in a bill or note, mean that it is payable in money current by law, and circulating at par. Wilburn v. Greer, 6 Ark. 255 ; Fry v. Dud- ley, 20 La. Ann. 368 ; Phoenix Ins. Co. v. Allen, 11 Mich. 501 ; Philps v. Town, 14 Id. 374 ; Butler v. Paine, 8 Minn. 324 ; Dorrance V. Stewart, 1 Yeates, 349. Current bank-notes are such as are con- vertible into specie at the counter where they were issued, and pass at par in the ordinary transactions of the country. Pierson w. Wallace, 7 Ark. 282. A check or bill of exchange drawn for " current funds " entitles the holder to de- mand coin, or its equivalent. Galena Ins. Co. V. Kupfer, 28 lU. 332 ; Kupfer v. Marc, Id. 388. Where a promissory note is written "payable in current funds," it must be construed as allowing payment in funds other than money. Conwell' v. Pumphrey, 9 Ind. 135. Current, preceding the word money, can- not change its meaning, because it is equally applicable to that kind of money made cur- rent by act of congress, which, in truth, is the only current money of Kentucky. Cur- rent money does not mean the same thing as currency. MeChord v. Ford, 3 T. B. Mm. 166. A note payable in " Mississippi currency " will be taken to mean the lawful currency of the state, i.e. gold and silver, in the ab- sence of proof that the notes of the banks of that state were intended. Bullard v. Wall, 2 La. Ann. 404. Current money, in a note upon time made in one of the seceded states during the war of 1861-65, is presumed to mean lawful money, and not confederate notes. Coco V. Calliham, 21 La. Ann. 624. A certificate of deposit, payable in " Ilti- CUESUS 333 CUSTODY noia currency," cannot be satisfied by depre- ciated paper : it must be met by bills passing in the locality in the place of coin. Hulbert V. Carver, 37 Barb. 62 ; Chicago, &c. Ins. Co. V. Keiron, 27 III. 601. " Current notes of the state of N " may mean either treasury notes of the state, or notes on various banlcs of the state. An instrument payable in such notes is not for a sum certain, payable in money and with- out conditions, and is therefore not negoti- able. Warren v. Brown, 64 N. C. 381. A note payable in " current bank-notes " is payable in such bank-bills only as are re- deemable in gold or silver, or such as are equivalent thereto ; and the court may ren- der judgment thereon, as a liquidated de- mand, without the intervention of a jury. Fleming v. Nail, 1 Tex. 246. Cursus curise est lex curiae. The practice of the court is the law of the court. Where a practice has become established, it should be adhered to, un- less in cases of extreme urgency and necessity, merely because it is the prac- tice, and although no reason can be as- signed for it; for an inveterate practice in the law generally stands upon princi- ples that are founded in justice and con- venience. Broom Max. 133. But such a practice is the law of the court merely; and a court of error does not generally notice the practice of another court. And every court is the master of its own practice, especially courts of equity, which will adapt their practice to chang- ing circumstances, and will not, by a too strict adherence to forms and rules established under different circumstan- ces, decline to administer justice and enforce rights for which there is no remedy elsewhere. Broom Max. 135. CURTESY. An estate accorded to a husband, upon the death of his wife, in lands or tenements of which she was seised during coverture, provided they had issue born alive during the marriage, which might have inherited. Curtesy of England is where a man taketh a wife seised in fee-simple, or fee- tail general, or as heiress in special tail, and hath issue by her, male or female, born alive, which by any possibility may inherit, and the wife dies, the husband holds the lands during his life. Though this is called the curtesy o£ England, it appears to have been the established law of Scotland, where it was called curialitas ; and it is likewise used in Ireland by virtue of an ordinance of Henry III. ; so that probably the word cur- tesy is in this sense understood rather to gignify an attendance upon the lord's courts than to denote any peculiar favor. Four things are requisite to give an estate by the curtesy ; viz., marriage, seisin of the wife, issue, and death of the wife. ( Co. Litt. 30.) Jacob. Curtesy is derived from caurtesie ; Latin, curialitas. It signifies suavity or urbanity, and denotes that the custom of tenancy by the curtesy sprung from favor to the hus- band, rather than from any natural right. Billings V. Baker, 28 Barb. 343, 345. Four things are absolutely requisite to an estate by curtesy: marriage, seisin of the wife during coverture, issue, and death of the wife. Furguson v. Tweedy, 56 Barb. 168. CURTILAGE. In law, means a fence or inclosure of a small piece of land around a dwelling-house, usually including the buildings occupied in connection with the house ; and this inclosure may consist wholly of a fence, or partly of a fence and partly of the exterior side of buildings so within the inclosure. Commonwealth v. Barney, 10 Cush. 480. The curtilage of a dwelling-house is a space, necessary and convenient and habit- ually used, for the family purposes, the car- rying on of domestic employments. It in- cludes the garden, if there be one, and it need not be separated from other lands by fence. State v. Shaw, 31 Me. 522. A bam standing eighty feet from a dwel- ing-house, in a yard or lane with which there . is a communication from the house through bars in a fence, is a part of the curtilage. People v. Taylor, 2 Mich. 250. Curtilage does not imply any thing as to the size of the parcel of land designated. Edwards v. Derrickson, 28 N. J. L. 39. Curtilage originally signified the land with the castle and out-houses, inclosed often with high stone walls, and where the old barons sometimes held their court in the open air, and which word we have corrupted into court-yard. Nothing could be more foreign to all ideas of a curtilage than a lot of land under tide-waters, nor could any tiling be more foreign to the meaning of the term lot than a piece of ground under tide-waters. Such ground might become either a lot or a curtilage when reclaimed, and raised above the water, and made fast land, but until then it could only be known as %vater, and not land at all. The whole earth itself is divided into the two great do- mains of land and water. The term lot and curtilage belong, by all usage by every- body, to the land. Coddington v. Beebe, 31 N. J. L. 477, 485. " The curtilage is the court-yard in the front or rear of a house, or at its side, or any piece of ground lying near, inclosed and used with the house and necessary for the convenient occupation of the house. People V. Gedney, 17 N. Y. Supreme Ct. 151. CUSTODY, in a sentence that defend- ant pay a fine, &c., " and be in custody till this sentence is complied with," imports actual imprisonment. The duty of the CUSTOM 334 GUSTOS sheriff under such a sentence is not per- formed by allowing the defendant to go at large under his general watch and control, but so doing renders him liable for an es- cape. Smith V. Commonwealth, 59 Pa. St. 320. The clerk's custody of a chest in a vault, in which the jury-wheel was deposited, was held to be custody of the wheel, within the meaning of the Pa. act of 1867, § 2, requir- ing the same to be in the custody of the jury commissioners. Holland v. Common- wealth, 82 Pa. St. 306. CUSTOM. A usage, such as has been suflBciently long continued and uni' form to operate as law, within a region or over a business or particular subject- matter. Customary : that which origi- nates from usage, as distinguished from ■what is established by positive law. Customs are styled general or particu- lar, according aa they extend over the whole country and constitute a part of its common law, or are confined to a particular district. Customs {plu.) also signifies a species of taxes, being duties or charges on im- portation or exportation of merchandise. The connection of the two uses of the word is not very clear. Apparently, in old English law, a great variety of exac- tions, maintained by crown or lords upon ground of immemorial usage, were called their customs. Most of these declined and became obsolete ; leaving duties on merchandise, imposed and regulated by law, the only important living example of the word in this sense. Customs, according to the Louisiana civil code, result from a long series of actions, constantly repeated, which have by such repetition, and by uninterrupted acquies- cence, acquired the force of a tacit and common consent. Broussard v. Bernard, 7 La. 211. General customs are such as prevail throughout a country and become the law of the country ; and their existence is to be determined by the court. Particular cus- toms are such as prevail in some county, city, town, parish, or place. Bodflsh v. Fox, 23 Me. 90. The custom of merchants comprehends the rules relating to bills of exchange, mer- cantile contracts, sale, purchase, and barter of goods, freight, insurance, &c. The stat- ute law has adopted many of these customs of merchants ; and, conversely, it has been suggested that a large part of mercantile customs have had their origin in forgotten statutes. Brown. Custom is something that has the effect of local law; as, a custom for the inhabi- tants of a parish to enter upon certain land(2t,^;f^^ in the parish, and erect a may-pole thereon, sonj-i' and dance round and about it, and other-'^f'^f'^ wise enjoy on the land any lawful and in- nocent recreation at any times in the year. Such a custom is good. Hall v. Notting- ham, 1 L. E. Ex. D. 1. Customary court-baron. See Coukt- Bakon. Customary estate. An estate which has the custom of the manor for its founda- tion. Customary freehold. A class of free- holds origiuating from the custom of the manor. See 2 Bl. Com. 149. Customary service. A service due by ancient custom or prescription only. Customary tenant. A tenant who holds by the custom of the manor. Customary tenure. A tenure depend- ing on the custom of a manor. CUSTOM-HOUSE. An establish- ment organized by law, in ports of en- try, where importers of goods, wares, and merchandise are bound to enter the same, and to pay or secure the duties or customs due to the government. Custom-house broker. One whose occupation it is, as the agent of others, to arrange entries and other custom-house pa- pers, or transact business at any port of entry relating to the importation or expor- tation of goods, wares, or merchandise. Act of July 13, 1866, § 9, 14 Stal. at L. 117. A person authorized by the commission- ers of customs to act for parties, at their option, in the entry or clearance of ships and the transaction of general business. Wharton. CUSTOMS. Duties, imposts, or taxes levied by government upon goods exported or imported. GUSTOS. A keeper. Custos brevium. The keeper of the writs ; a principal clerk in the English court of common pleas, whose office was to receive and keep the writs returnable in .that court, and to put them upon files. Custos morum. This expression has been applied to the court of queen's bench, as the guardian of the morals of the nation. Custos placitorum coronas. Keeper of the pleas of the crown. Custos rotulorum. An English coun- ty officer having charge of the rolls or records. He is a justice of the peace within the county, but is rather a minis- terial than a judicial officer. Wharton. Custos spiritualium, or temporali- CUT 335 DAMAGES um. Guardian of the spiritualities or temporalities. CUT, imports a wound with an instru- ment having an edge. State v. Patza, 3 La. Ann. 512. A striking over the face with the sharp or claw part of a hammer, was held to be a sufficient cutting within the statute of 43 Geo. m. Atkinson's Case, 1 Russ. ^ R. 104. Cut glass (as used in the tariff act of July 30, 1846), includes glass tumblers which have the entire surface smoothed or polished, or their sides figured or ornament- ed by cutting or grinding. Binns ii. Law- rence, 12 How. 9, 20. CY PRES. As near. The doctrine of construing written instruments as near the intention of the parties as the rules of law wiU allow, is termed " the doctrine of cypres." This doctrine is within the application of the maxim, henigne faciendce sunt interpretationes, &c., q. v.; but is, in general, applied to wills only, and not to deeds. The prin- ciple is generally stated thus : that where a testator evinces a particular intention and a general intention, and the particular intention cannot take ef- fect, the words shall be so construed as to give effect to the general intention. Broom Max. 565. So where a devise might be held void, as attempting to create a perpetuity prohibited by law, if possible, the devise will not be treated as utterly void, but will be construed in such a manner as to carry into efEect the testator's intention so far as the law pro- hibiting perpetuities wUl allow; and such an interpretation of the language of the devise is called a construction cy pres. In England, and in some of the United States, the doctrine is also ap- plied to sustain bequests and devises for charitable purposes, and is carried much further than is allowed where private interests are to be upheld. If the sub- stantial intention of a testamentary pro- vision is charitable, and the mode of execution provided by the will fails, some means of giving effect to the char- itable intention of the testator wUl be found, if possible, even by applying the fund to a purpose different from that contemplated by him, provided always that it be charitable. CYROGBAPH. See Chirograph. D. DAILY. A statute prescribing publica- tion of advertisements in some daily news- paper, is satisfied by a publication in a paper issued every day of the week except one, whether the omitted one is Sunday, or one of the week-days. Richardson v. Tobin, 45 Ccd. 30. DAMAGE. Is used in jurisprudence in its vernacular sense of injury; but is to be distinguished from damages, which means pecuniary recompense for an in- jury. An injury produces a right in them who have suffered any damage by it, to de- mand reparation of such damage from the authors of the injury. By damage, we un- derstand every loss or diminution of what is a man's own, occasioned by the fault of another. 1 Rutherf. Inst. 399. Damage feasant. Doing damage. This phrase designates animals belong- ing to one person, but found upon the land of another, doing damage; as by feeding upon or trea.ding down the grass, grain, or other productions of the earth. By the common law, a distress of ani- mals was allowed under such circum- stances, and the animals so taken were said to be distrained damage feasant. DAMAGES. 1. A pecuniary recom- pense awarded by judicial tribunals to indemnify one who has sustained an in- jury through some wrongful act or neg- lect; a sum recoverable as amends for a tort. Damages are termed general, mean- ing those which, by implication of law, result from the tort, and are awarded in the sound discretion of the jury, and without calling for evidence of any particular loss; and special, or the in- demnity allowable for the specific losses which plaintiff alleges and proves that he sustained. They are direct or immediate, or such as result from the operation of the tort, DAMAGES 336 DAMAGES ■without the intervention of intermediate causes; and consequential or remote, or such as the tort might not produce with- out the concurrence of other events, — and these last are generally disallowed. They are compensatory, or such as are measured by the loss sustained by plain- tiff, and are allowed him as a just amends therefor; and exemplary, puni- tive, or vindictive, when allowed in ex- cess of a simple compensation for the loss, and upon a theory of punishing the wrong-doer for the wrong inflicted upon plaintiff. They are liquidated, when the amount payable has been definitely fixed by act of parties or the judgment of a court; and unliquidated, until so fixed. They are nominal, when a trivial sum, as six and a quarter cents, is allowed in recognition that a mere right of plain- tiff has been infringed, but without im- portant loss sustained; and substantial, when a considerable sum is found. They are actual or single, when the jury find the amount to be awarded, and judgment is immediately rendered therefor. Upon some wrongs, the statute authorizes the court to pass judgment for an increased amount, as for twice the sum, or three times the sum, found by the jury; and these are called in- creased, double, or treble damages. They are pronounced excessive, where the amount is, in the judgment of the court, so much greater than ought to have been allowed, as to indicate clearly that the jury have been influenced by favor, passion, or prejudice, instead of exercising a sound judgment; and for this a verdict may be set aside, and a new trial ordered, on application of de- fendant. They are styled inadequate or insufficient, when the sum is, by a like test, grossly less than the plaintiff is clearly entitled to recover; and for this, in rare cases, the plaintiff may have a new trial. 2. Damages sometimes signifies the clause or passage in a declaration in which the plaintiff alleges or " lays " the sum or amount which he claims to recover; and the word is sometimes used, loosely, in the sense of injuries; causes for a recovery of damages. Damages is taken in law in two several significations : the one properly and gene- rally, the other relatively and properly. It is taken in cases wherein damages are found- ed upon the statutes where costs are in- cluded within the word damages, and taken as damages. But when the plaintiff de- clares for the wrong done to him, to the damage of such a sum, this is to be taken relatively for the wrong which passed be- fore the writ brought, and is assessed by reason of the foregoing trespass, and cannot extend to costs of suit, which are future, and of another nature. Jacobs Damages are given as a compensation, recompense, or satisfaction to the plaintiff, for an injury actually received by him from the defendant. They should he pre- cisely commensurate with the injury, nei- ther more nor less ; and this whether it he to his person or estate. 2 Greed. Ev. § 253. Damages for losses which necessarily re- sult from the wrong sued for are called gen- eral damages, and may be shown under the ad damnum, or general allegation of damage ; for the defendant does not need notice of such consequences to enable him to make his defence : he knows that they must exist, and will he in evidence. But if certain losses do not necessarily result from defendant's wrongful act, but, in fact, follow it as a natural and proximate consequence in the particular case, they are called special, and must be specially alleged, that the defend- ant may have notice and be prepared to go into the inquiry. Bristol Manuf. Co. v. Gridley, 28 Cmn. 201, 212. Damages in a statute requiring a party to give a bond to pay damages and costs does not, usually, enlarge the hability, or admit proof of incidental or consequential dam- ages. The object of the requirement is only to obtain written security for discharge of the liability imposed by law, whatever that may Ije. Bartholomew v. Chapin, 10 Mete. 1. The word damages in such a statute does not embrace costs incurred in a court be- low, and included in a judgment for pay- ment of which the bond is required and given. Damages and costs are distinct and separate parts of a judgment. Griffin o. Mortimer, 8 Wend. 538. Damages does not include an award of alimony. Chase v. Ingalls, 97 Mass. 524. It does not include a judgment impos- ing an amercement or fine. Abraham's ' Case, 1 Rob. 676. Damages and compensation are some- times to be taken, in a railroad act, as sy- nonymous. Hays V. Briggs, 3 Pittsh. 604. Damages, in a statute requiring a plain- tiff In error or appellant to give security for damages sustained by the writ or ap- peal, includes the loss which the other party may sustain by the judgment not being paid. Catlett v. Brodie, 9 Wheai. 553. The two words, damages and profits, as used in the patent laws, are not converti- ble. Damages are to be awarded in addi- tion to profits. Profits refers to what the DAMNOSA 337 DANGERS defendant has gained by the unlawful use of the patented invention, and damages to what the claimant has lost. Goodyear Den- tal Vulcanite Co. v. Van Antwerp, 9 Off. Gaz. Pat. 497. The terms damages, costs, and expenses, in a covenant of indemnity against the pay- ment of a mortgage, do not cover a pre- mium or bonus which the party pays to a broker for his services in procuring a per- son to take an assignment of the mortgage. Low V. Archer, 12 N. Y. 277. Damages, in N. H. Gen. Stat. ch. 69, § 1, declaring towns liable for damages happen- ing to any person, &c., by reason of defect in highway, means a compensation, recom- pense, or satisfaction to the plaintiff, com- mensurate with the injury. Injury to prop- erty upon the person of the traveller, e.g. loss of money from the pocket, or tearing of the clothing, is included, as well as bodily injuries. Woodman v. Nottingham, 49 N. H. 387, 392. DAMNOSA HEREDITAS. A bur- densome inheritance; that is to say, an inheritance of which the liabilities ex- ceed the assets. By the Roman law, the heir was liable to the full extent'of the deceased's liabilities, and was there- fore a loser by entering upon the inheri- tance. The term has also been applied to that species of property of a bankrupt which, BO far from being valuable, would be a charge to the creditors ; for example, a term of years where the rent would exceed the revenue. Bourdillon v. Dalton, Peake, N.8. 238 ; \Esp. N. P. 234. DAMNUM. A loss; a damage. The word occurs chiefly in such phrases as : Damnum absque injuria. Injury without wrong. This phrase is used to designate the class of injuries for which there is no legal remedy; such as dam- ages arising from inevitable accident, or from an act lawful in itself, and not performed with any intent or desire to injure. The injuria, which is an essen- tial element in a right of action, is more than mere damage or loss inflicted with- out malice, for which the law gives no remedy. Thus, one who commences a business or sets up a trade in the same locality where another has previously established a similar business or trade, though he draws away custom or trade from such other, is not therefore liable to an action ; for, though there be loss (damnum) to the other, it is not coupled ■with such wrong (injuria) as will give a VOL. I. 22 right of action. So if the owner of property, within the proper exercise of his right of dominion over his own prop- erty, does acts which cause loss to an- other, this is damnum absque injuria, and no action lies against him therefor. And acts of public officers or agents, within the scope of their authority, if they cause damage, cause only damnum absque injuria. For the principal cases on this subject, see 1 Smith Lead. Cos. 244 et seq. Damnum fatale. Injury from a cause beyond human control. In the civil law, injury caused by a fortuitous event, or inevitable accident. The phrase was used to distinguish a class of losses for which bailees were not held liable. Among these were included losses by shipwreck, lightning, or simi- lar casualty; even losses by fire, by pirates, by robbery; but theft was not included. The term is sometimes used by common-law writers in the same sense. The civilians included in the phrase damnum fatale all those accidents which are summed up in the common-law expression, " act of God or public enemies ; " though per- haps it embraced some which would not now be admitted as occurring from an irresisti- ble force. Thickstun v. Howard, 8 Black/. 535. DANGEROUS WEAPON. The danger referred to in this term is danger to life. Whether an assault was with a dan- gerous weapon or not, may depend upon the manner of the assault. The court cannot declare, as matter of law, that an assault committed witli a belaying-pin was with a dangerous weapon ; but the question must be left to the jury. United States v. Small, 2 Curt. 241. An instruction that a knife, described in the bill of exceptions merely as a " jack- knife," was a dangerous weapon, was sus- tained in Commonwealth v. O'Brien, 119 Mass. 342. As to a distinction between a dangerous and a deadly weapon, see Plnson v. State, 23 Tex. 579. DANGERS OF THE SEAS. This;, phrase has acquired a conventional meaning, like that of perils of the seas (q. v.), from long employment in bills of lading and other mercantile agreements, where it is employed in a customary clause stipulating that the carrier, &c., shall not be liable for a loss attributable to dangers of the seas. The phrases, the dangers of the seas, DANGERS 338 DATE the dangers of navigation, and the perils of tlie seas, employed in bills of lading, are convertible terms. Baxter u. Leland, Abb. Adm. 348. The expression dangers of the seas means those accidents peculiar to navigar tion that are Of an extraordinary nature, or arise from irresistible force or overwhelm- ing power, which cannot be guarded against by the ordinary exertions of human skill and prudence. Tuckerman v. Stephens, &c. Trans. Co., 32 N. J. L. 320 ; and see 33 Id. 64.3, 565. The ordinary clause in a bill of lading excepting dangers of the seas, dangers of the lake, or river, &c., does not exempt the carrier from liability for a loss incurred through negligence. Slocum v. Fairchild, 7 Hill, 2^1, 19 Wend. 329. That clause signifies the natural acci- dents incident to navigation; not such as may be avoided by the exercise of that dis- cretion and foresight, which are expected from persons in such employment. Wil- liams V. Branson, 1 Murph. 417 ; Graham v. Davis, 4 Ohio St. 362. That clause covers the case of an acci- dent occurring in navigable waters by reason of a hidden obstruction of recent origin not avoidable even with extraor- dinary care and foresight. But if a carrier learns of a new obstruction before an in- jury is caused by it, he must use increased caution ; and if he could by any means have removed it, he will be chargeable. Eedpath I!. Vaughan, 52 Barb. 489 ; Gordon v. Bu- chanan, 5 Yerg. 71. That clause covers a loss occasioned by a collision, unless it is attributable to negli- gence, or might have been prevented by reasonable skill and diligence. Whitesides V. Thurlkill, 20 Miss. 599. That clause does not include injury to the goods by rats. Aymar v. Astor, 6 Cow. 267. Nor damage sustained through bilging a canal-boat in a lock entered contrary to regulations. Atwood v. Reliance Co., 9 Watts, 87. That clause does not apply where, merely, a river on the route became unnavigable by reason of low water ; for " danger of navi- gation " does not mean a want of naviga- tion. Cowley V. Davidson, 13 Minn. 92. Fire, occurring on the wharf, after the goods are landed, is not within the excep- tion of the dangers of the seas, in the ordi- nary bill of lading. Salmon Falls Manuf . Co. V. The Tangier, 6 Am. Law Reg. 504 ; n Law Rep. N. B. 6. The expression is equivocal. It is ca- pable of being interpreted to mean all dan- gers that arise upon the seas ; or may be restricted to perils which arise directly and exclusively from the sea, or of which it is the efficient cause. In insurance policies, it may have the wider meaning ; but in char- ter-parties, an exception introduced to limit the obligation of the charterer to return the vessel, of dangers of the seas, should be construed, since the charterer has posses- sion, against him; and confined to the limited sense. Thus construed, it does not include destruction of the vessel by fire. Merrill v. Avey, 3 Ware, 215; 2 Curt. C. a. 8. DARREIN. The last; the most re- cent. It is said to be a corruption of the French dernier. The only impor- tant use of it is in the phrase puis dar- rein continuance, — since the last continu- ance; applied to a plea which sets up some matter of defence that has arisen since the cause was last adjourned; since the immediately preceding term of the court. DATE. Is used not only to designate the time when an event occurred, and particularly when an instrument was made or delivered, but also to signify that clause or memorandum in or affixed to a written instrument which specifies the time when it was given, or from which its operation is to be reckoned. Burrill explains that this clause, in its old and full form, ran, datum apud, &c., specifying the place, and then the time ; and that it was called the datum clause ; this name being soon after short- ened to date, which was adopted for more general application. The date is not esteemed, in law, a part of the instrument, but is a memo- randum or certificate that the instrument was made on the day named. It may be corrected by proof of the true day, and the instrument will then take effect accordingly. The primary signification of date is not time in the abstract, nor time taken abso- lutely, but time given or specified ; time in some way ascertained and fixed. When we speak of the date of a deed, we do not mean the time when it was actually executed, but the time of its execution, as given or stated in the deed itself. The date of an item, or of a charge in a book-account, is not necessarily the time when the article charged was, in fact, furnished, but rather the time given or set down in the account, in con- nection with such charge. And so the ex- pression, " the date of the last work done, or materials furnished," in a mechanic's lien law, may be taken, in the "absence of any thing in the act indicating a different intention, to mean the time when such work was done or materials furnished, as specified in the plaintiffs' written claim. Bement v. Trenton Locomotive, &c. Co., 32 N. J. L. 513. Where a date is given, both as a day of the week and a day of 'the month, and the DATION 339 DAY two are inconsistent, the day of the month must govern. Ingersoll v, Kirby, Walk. 27. DATION EN PAIEMENT. A term of the civil law for a transfer of property to discharge an indebtedness, in lieu of a money payment. DAY. Is sometimes used, in juris- prudence, in its astronomical sense of the space of time in which the earth makes one revolution upon its axis; or of the time between one midnight and the next; sometimes, in the popular sense, of the time between sunrise and sunset; and sometimes, in a conventional sense, of those hours or that recurring time which is by usage or law allotted to and deemed sufficient for the discharge of some duty or performance of some busi- ness; as where one speaks of a day's work, the whole of a business day, &c. See Dies. A statute forbidding an act to be done on a particular day, means the natural day of twenty-four hours, from midnight to mid- night. Pulling V. People, 8 Barb. 384. How to reckon days is a question of some difficulty in several cases. 1. When a contract or statute allows a person a specified number of days, for making a payment, serving a notice or pleading, taking an appeal, or perform- ing any act authorized or imposed, the rule for construing the word days, very generally, though not universally estab- lished, is that the first day is excluded and the last included; thus, if a con- tract executed on the first day of the month requires one of the parties to make a payment within ten days, the first day of the month is not counted,' the second day of the month is the first of the ten, and the party has to the end of the eleventh day for perform- ing. But the rule of computation adopted in any case depends not so much upon the signification of the word day, as upon that of the words used in the particular instrument or statute to express the mode of computation, or upon the nature of the subject-matter and the reason of the thing. Thus, where time is computed from or after a certain day, that day is usually excluded, be- cause no moment of time can be said to be after a given day, till that day is wholly past. The same principle ap- plies in computing any number of days from or after an act done; the whole of the day on which the act is done is ex- cluded, in most cases, especially if such exclusion will preserve a right or pre- vent a forfeiture. Similar questions of construction arise from the application of such words as to or until, to the ter- mination of a period consisting of a' cer- tain number of days. But the first and the last day are not both to be reckoned inclusive, in any case; while they are sometimes both excluded, as in cases where a certain time is given to a party to do some act, which time is included between two other acts to be done by an- other, and both the days of doing such acts are excluded, in order to insure to him the whole of that time. The common-law rule of computation of time is to include the first day and exclude the last ; and under that rule notice given on the 19th of May of a suit brought on the 18th of June is given thirty days before suit. Thomas v. Afflick, 16 Pa. St. 14. In Indiana, where a certain number of days are given from the time of a contract in which to do an act, the whole of the day on which the contract was made is to be taken as one of the days. Brown v. Buzan, 24 /nd. 194. See From. Where time is to be computed from an act done, the day on which the act was done must be included ; but when the computa- tion is to be from the day itself, and not from the act done, then the day on which the act was done must be excluded. Hamp- ton V. Erenyeller, 2 Browne, 18 ; Chiles v. Smith, 13 B. Mm. 460 ; Blake v. Crownin- shield, 9 N. H. 304. There is no general rule, in computing time from an act or event, that the day of the act or event is to be included or ex- cluded. But wherever the reason of the case requires, the entire day will be ex- cluded. Thus, in computing from the death of a testator, where there is no alter- native but either to take the actual instant or the entire day as the time of his death, the entire day must be excluded; other- wise the computation would in reality begin from the preceding day. Lester v. Garland, 15 Ves. 248. Deyo v. Bleakley, 24 Barb. 9. In computing time, in some of the ad- judged cases, a distinction has been taken between the date and the day of the date of a written instrument; also, between mer- cantile contracts and others ; and, again, it has been said that a different rule of com- putation prevails under contracts and under statutes. These distinctions can be of no practical use, but are well calculated to mislead. The true rule is, that not only mercantile contracts, such as bills of ex- change, promissory notes, policies of insui^ DAY 340 DAY anoe, &e., but also wills and all other instru- ments, are so to be understood as that the day of the date, or the day of the act from which a future time is to be ascertained, is to be excluded from the calculation ; and the modern cases, in this country, have adopted the same rule in the construction of statutes, and as governing all proceedings under them. Weeks v. Hull, 19 Conn. 376. Under a statute requiring that certain penalties incurred by railroad companies shall be sued for " within ten days," the day on which the penalty was incurred is to be excluded. People v. New York, &c. Co., 28 Barb. 284. A notice on the 15th of a month of a mechanic's lien filed on the 25th, is sufS- cient under a statute requiring that ten days' notice shall be given. Hahn v. Dierkes, 37 Mo. 574. An appeal from a judgment rendered February 24, taken on the 25th of March following, is taken within thirty days after the rendition of the judgment. Swift o. Tousey, 5 Ind. 196. So, an appeal from a judgment rendered March 15, which is taken April 14, is taken within thirty days. Faure v. United States Express Co., 23 Ind. 48. And' an appeal from an order entered May 27, by a notice of appeal, June 27, is taken " within thirty days," where by the statute the first day is to be excluded. Gallt V. Finch, 24 How. Pr. 193. In computing the two days in which a prisoner indicted capitally in Alabama is entitled to have a list of the jurors before the trial, the day of delivery and day of trial are to be excluded. State v. McLen- don, 1 Stem. 195. A statutory provision requiring a notice to the defendant, which shall " leave at least ten days between the day of service and the first day of the next term," ex- cludes both of those days in the computa- tion of the time. Eobinson v. Foster, 12 Iowa, 186. 2. When a statute limits a specified number of days for doing sa act or tak- ing a legal proceeding, intervening Sun- days are frequently omitted from the computation, on the ground that Sunday is not a judicial day, and should not, therefore, be counted against one vfho is entitled to a prescribed number of days for doing a judicial act. The rule ex- tends to other days on which no such act can be done, such as public holidays. A distinction is sometimes made be- tween cases where the number of days allowed is less than a week, a Sunday occuning in which is not counted, and cases where more than a week is allowed, in which an intermediate Sunday or Sundays may be counted. Under a statute providing that the day to be appointed, in the warrant for holding a court, shall be " not less than five, nor more than ten, days after the date thereof," the court may be held on the fifth day after the date of the warrant, though one of the five days is Sunday. Abraham's Case, 1 Eob.(Va.)6n. Sunday is not counted as one of the days of a term of a court. Thus, in determining the " tenth day " of the term, under a notice of a step to be taken on the tenth day, Sun- day is excluded. Michie v. -Michie, 17 Gratl. 109. Under a statute providing that an appeal may be entered " within four days after the adjournment of the court," &c., Sunday should not be counted as one of the four days. Neal v. Crew, 12 Ga. 93. The three days allowed by statute for filing the appeal after the return-day, are judicial days; and the appeal will be in time even if filed on the third judicial day. Bouligny v. White, 5 La. Ann. 31. Where provision is made by statute for the publication of a notice for a certain number of consecutive days, and no excep- tion is made of Sundays, they are to be counted. Taylor v. Palmer, 31 Col. 240; Miles V. McDermott, Id. 271. The word days, as used in a statute regu- lating proceedings in court, which requires notice to be given or an act to be done in a specified number of " days," does not include Sundays. The prescribed number of secular days is to be given. Query, whether the rule extends to periods exceeding a week ■? Na- tional Bank v. Williams, & Mo. 17 ; and see Burton v. Chicago, 53 III. 87. The word days, used alone in a clause of demurrage for unlading in the river Thames, is to be understood of working or running days only, and not to comprehend Sundays or holidays, by usage of merchants in London. Cochran v. Eetberg, 3 Esp. N. P. 121. 3. When the last of a specified number of days allowed for doing an act is Sun- day, the act is sometimes required to be performed on the preceding day. This is always the rule in regard to days of grace when the last day of grace falls upon Sunday. But the general rule is that the last Sunday is not counted a day, and the party has the whole of the following Monday for performance. A similar rule is applied where the last day is a public holiday. When the day of performance of con- tracts, other than instruments upon which days of grace are allowed, falls on Sunday, that day is not counted ; and a compliance with the contract on Monday is a sufficient performance. Salter v. Burt, 20 Wend. 205 ; Stebbins v. Leowolf, 3 Cush. 137 ; Stryker V. Vanderbilt, 27 N. J. L. 68. In New York, previous to the code of DAY 841 DAY procedure, where the period fixed by statute for doing any act expired on Sunday, the act was required to be done on the preced- ing day ; but where the time was prescribed by the rules or practice of the courts, the party had the whole of the following Mon- day. Broome v. Wellington, 1 Sanaf. 664. 4. A very general rule is that the law does not notice fractions of a day, but treats a day as a point of time ; thus, if an instrument executed on the first day of a month requires a certain act to be done within ten days, performance at any hour on the eleventh day of the month wiU be held good. The law would not sustain an objection that the instrument was executed early in the morning, and therefore performance, if delayed till the eleventh day, ought to be completed equally early in it, else more than ten days were consumed. This rule is not invariable: it is applied according to the justice and convenience of the case. Where from the nature of the case jus- tice requires it, fractions of a day are reckoned. Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of indivisi- ble point ; so that any act done in the com- pass of it is no more referable to any one than to any other portion of it ; but the act and the day are coextensive ; and therefore the act cannot properly be said to be passed until the day is passed. Lester v. Garland, 15 Ves. 248. In general, the law does not notice frac- tions of a day; yet, where questions of right, growing out of deeds, judgments, and other instruments bearing the same date, are concerned, the precise time of the approval of a statute may be inquired into, to prevent it from operating retrospectively. 3 Op. Att.-Gen. 82. Divisions of a day, though applicable to private transactions, are not permitted to create priorities in questions concerning public acts, or such judicial proceedings as are matters of record. Exp. "Welman, 7 Law Rep. 25, 20 Vt. 653. The time for completing commercial con- tracts is not limited to banking hours. A party has the whole business day to deliver or to pay. Price v. Tucker, 5 La. Ann. 514. In the legal computation of time there are no fractions of a day ; and the day on which an act is done must be entirely ex- cluded or included. Jones v. Planters' Bank, 6 Humph. 619; Portland Bank v. Maine Bank, 11 Mass. 204. Whenever the whole day and every mo- ment of it can be counted, then it should be counted ; whenever, if it were counted, the party would in fact have but a fractional part of it, then it should not be counted. Thus, since an infant becomes of age, and is competent to bring suit at any moment upon the day preceding his twenty-first birth-day, that day is to be counted in the time allowed by a statute of limitations for bringing suit after the disability of infancy is removed. Fhelan v. Douglass, 11 Haw. Pr. 198. 5. For some legislative and judicial purposes, the whole of a session or term has bfeen considered as constituting, by a fiction of law, one day only; but this rule is less applied at the present time than formerly. As to reckoning the twenty-eighth and twenty-ninth days of February as one day, see Bissextile. The whole of a term of court is consid- ered as one day; and, by a legal fiction, the time between the submission and deci- sion of a cause is also considered as but one day ; so that, although a party to an action may die between the time of the decision in the cause by the supreme court of a state and the filing of the mandate of the supreme court of the United States reversing that decision, no change of parties in the state court is necessary before carrying the man- date into effect. Cunningham i>. Ashley, 13 Ark. 633. Days of grace. A certain number of days allowed to the acceptor of a bill or the maker of a note, for payment, addi- tional to the time expressed in the bill or note itself. Originally, such days were allowed as matter of favor merely; but the custom of merchants in this respect having grown into law, and been sanc- tioned by the courts, all biUs of exchange are deemed entitled under the law-mer- chant to days of grace; and the same rule was extended to promissory notes by the English statute making them negotiable, which has been generally adopted in the United States. Bills or notes payable at sight or on demand and banker's checks are not entitled to grace. The number of days allowed in the United States is three, computed by add- ing three days to the term of the bill or note, irrespective of the fact that the day on which the bill would be due without the days of grace is a Sunday or holiday. The days of grace are consid- ered a part of the time the bill has to run, and interest is charged for them as such. A note is really due when the days of grace commence, for they cannot begin until it has matured upon its face. Upon notes which bear interest after maturity the interest runs from the time they malnie DE 342 DE on their face, not from the time they are made to mature by the days of grace. Weems v. Ventresa, 14 La. Ann. 265. Daytime. The time during which there is the light of day; as distin- guished from night-time, during which there is only the light of the moon and stars, or artificial light. The principal legal use of this term is in defining various crimes, or degrees of crime, such as burglary, arson, &c., in which the time of its commission is an essen- tial part of the particular offence. See Night-time. Daytime, in bonds for the liberty of the jail-yard, includes that portion of time dur- ing which a man's person and countenance are distinguishable. Trull o. Wilson, 9 Mass. 154. DE. Of; concerning; also, out of or arising from; also, for, by, &c. This Latin preposition is the initial word in numerous Latin phrases which have been employed in jurisprudence. Some of them have lost currency, because the things they designated have become obsolete; others have been replaced by English substitutes. Below is a liberal selection of those in use in the jurispru- dence of modem times. The list might be increased indefinitely by adding names of writs long disused, and phrases gathered from books of ancient learning. De, from the French, usually trans- lated of, sometimes to, from, by, &c., is also notable as a member of ancient law French phrases, such as brefe de droit (writ of right) , de pleyn age (of full age) ; plegges de suer (security to prosecute). De bene ease. Of well being; of formal sufficiency for the time; condi- tionally; provisionally. This phrase is technically applied to acts or proceedings done or permitted, deemed for the time to be well done, and to be formally suffi- cient, but the validity or effect of which depends upon some subsequent act, fact, or proceeding. It is equivalent to con- ditionally or provisionally. Its most frequent application in practice is, to examinations of a witness out of court before trial, subject to the contin- gency of his being able to attend at the trial. Such an examination is termed an examination de bene esse, and is allowed when there is danger of losing testimony of an important witness from death, by reason of age or dangerous ill- ness, or where he is the only witness to an important fact, and in other cases generally defined by statutes. If the witness is unable to attend at the trial, such examination is good, and his depo- sition so taken may be read in evidence on the trial. But if he is able to at- tend, the examination is of no validity, and he must be examined again at the trial in the usual way. Burrill. The term was anciently applied in the same sense to other proceedings taken condi- tionally; as to a verdict subject to the opinion of the court, which still is occa- sionally called a verdict de bene esse. The peculiar structure of the Latin phrase renders a literal translation of it into English, difficult. Cowel says that " de bene esse are common Latin words, but their meaning something more dark." There is no uncertainty, how- ever, in regard to the practical import of the phrase, as explained above: it is in common use, and well understood. De bonis asportatis. For goods taken away; for taking away goods. The action of trespass for taking away personal property was technically termed trespass de bonis asportatis. De bonis non. Of the goods not. This phrase is an abbreviation of de bonis non administratis, — of the goods not administered, —which is also occa- sionally used. Where, in consequence of the death, removal, &c., of the admin- istrator, the administration of an intes- tate's estate is left unfinished, a new administrator may be appointed of the goods remaining unadministered, and he is termed an administrator de bonis non ; i.e., an administrator of the goods of the intestate not administered by the former administrator. An administrator ap- pointed under like circumstances to suc- ceed an executor is termed an adminis- trator de bonis non cum teslamento an- nexo. See Cum testamento annexo. De bonis propriis. Of his own goods. Where a judgment is rendered against an administrator or executor to be satisfied from his own property, and not from the estate of the deceased, it is termed a judgment de bonis propriis. De bonis testatoris. Of the goods of DE 343 DB the testator. A judgment against an executor which is to be satisfied out of the goods or property of the testator, as distinguished from a judgment de bonis propriis, is termed a judgment de bonis testatoris. In some cases, judgment may be rendered against an executor, to be satisfied out of the property of the tes- tator, if any, and, if not, out of the property of the executor. Such a judg- ment is termed a judgment de bonis tes- tatoris si. Another form of judgment against an executor is de bonis testatoris cum accide- rint, — to be satisfied out of the goods of the testator when they come to hand. De bono et malo. For good and evil. 1. In ancient criminal plead- ings, the party accused, in submitting himself to a jury, employed this phrase: ponit se super patriam de bono et malo, — puts himself upon the country for good and evil. 2. The special writ of jail delivery formerly in use in England, which issued for each particular prisoner, of course, was termed a writ de bono et malo. It was superseded by the general commis- sion of jail delivery. De donis. Concerning gifts. The first chapter of the statute of Westmin- ster 2 (13 Edw. I.) is commonly called the statute de donis, or more fuUy, de donis conditionalibus, — concerning con- ditional gifts or grants. By this statute fees-simple conditional were converted into fees-tail, and the power of alienat- ing such estates being taken away, per- petuities were introduced. De facto. In fact; in point of fact ; actually. This term is used to denote a thing actually done, or a condition actually existing. It is frequently em- ployed in contradistinction from the phrase de jure, of right, or by right. Thus a person who performs the duties of an office with apparent right, and under claim and color of office, as by an appointment or election not strictly le- gal, or by holding over after the expira- tion of his term, or without having duly qualified, is termed an officer de facto ; while a person who is legally entitled to an office, but is deprived of it, is an offi- cer de jure only. A like distinction is made between governments de facto and dejure. So a wife de facto, whose mar- riage is voidable by decree, is distin- guished from a wife de jure, or lawful wife. The term is frequently used inde- pendently of any distinction from de jure ; thus a blockade de facto is a block- ade which is actually maintained, as dis- tinguished from a mere paper blockade. An officer de facto is one who exercises the duties of an office under color of right, by virtue of an appointment or election to that office ; being distinguished, on the one band, from a mere usurper of an office, and, on the other, from an officer de jure. Ply- mo^h V. Painter, 17 Conn. 585 ; Eice v. Com- monwealth, 3 Bush, 14 ; Brown v. Lunt, 37 Me. 423; Hooper v. Goodwin, 48 Id. 79; Gregg V. Jamison, 55 Pa. St. 468 ; Commis- sioners V. McDaniel, 7 Jones L. 107. To constitute an officer de facto, there must be color of title. A claim, under ap- pointment, of title to an office which by law is elective ; or a claim, under election, to an office which by law must be filled by ap- pointment, is no color of title, and cannot constitute the claimant an officer de facto, so that perjury can be assigned of an oath administered by him. People v. Albertson, 8 How. Pr. 363; s. p. Wilcox v. Smith, 5 Wend. 231. The term de facto, as descriptive of a gov- ernment, has no well fixed and definite sense. It is, perhaps, most correctly used as signifying a government completely, though only temporarily, established in the place of the lawful or regular government, occupying its capitol and exercising its power, and which is ultimately overthrown and the authority of the government de jure re-established. Thomas v. Taylor, 42 Miss. 651, 703. A government de facto is a government that unlawfully gets the possession and con- trol of the rightful legal government, and maintains itself there, by force and arms, against the will of such legal government, and claims to exercise the powers thereof. Chisholm v. Coleman, 43 Ala. 204. An officer de facto is one whose acts, though he was not a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the public and third persons. State v. Carroll, 38 Conn. 449. A de facto officer is one who goes in under color of authority, or who exercises the du- ties of the office so long or under such cir- cumstances as to raise a presumption of his right. People v. Staton, 73 N. C. 546. De homine replegiaudo. For re- plevying a man. This was the name of a writ to replevy a man out of prison, or out of the custody of any private person, upon giving security to the sheriff that the man shall be forthcoming to answer any charge against him. The proceed- DE 344 DE ing has become nearly obsolete, both in England and the United States, having been superseded by the writ of habeas corpus ; but has been revived by statute in some of the United States, in a some- what different form. The statute of Maine allowed it for persons unlawfully imprisoned, under restraint of liberty, or held in duress. It lies only for the benefit of the person so imprisoned or restrained, and must be brought in his name, though it may be by the procure- ment of another. It cannot be used for the benefit of another person, even though such person may have by con- tract a lawful claim to his service or to the custody of his person. 32 Me. 560 ; 34 Id. 136. As to the use of the writ in Massachusetts, see Mass. Gen. Stat. ch. 144, § 42 et seq. ; in New York, see 2 N. Y. Eev. Stat. 561, § 15. De injuria. Of wrong. Technical words used to designate a particular form of replication in an action of tort, ty which the plaintiff denies the effect of matters of excuse offered by the defend- ant. The formal words necessary in the Latin form of such a replication were de injuria sua propria , absque tali causa , — of his own wrong, without such cause ; or, after an admission of a part of the plea, de injuria sua propria, absque residua causce, — of his own wrong, without the rest of the cause ; and such a traverse of the defendant's plea was termed a repli- cation de injuria. In form it is a species of traverse, and it is frequently used when the pleading of the defendant, in answer to which it is directed, consists merely of matter of excuse of the alleged trespass, grievance, breach of contract, or other cause of action. Its compre- hensive character in putting in issue all the material facts of the defendant's plea has also obtained for it the title of the general replication. Holthouse. Its peculiarity lay in denying in gen- eral and summary terms, and not in the words of the allegation traversed. It is, in general, proper where the plea con- sists of matter of excuse only; but the decisions vary as to what excuse or facts will sustain this form of repli- cation, and as to what evidence is admissible under it. It is said gen- erally that the replication de injuria puts the whole plea in issue, and com- pels the defendant to prove it. De jure. Of right; by right; right- fully; lawfully. This term is used to describe a thing or condition which exists or is claimed as matter of right ; most frequently as distinguished from de facto, q. v. ; often applied to rights or remedies demanded as absolute rights, as contrasted with what is asked as matter of favor; and sometimes distin- guishing what is claimed at law from an equitable right. De la plus belle. Of the fairest. Dower de la plus belle was where the wife was endowed with the fairest part of her husband's estate. Jacob. De lunatico inquirendo. For in- quiring concerning a lunatic. The name of a writ, or commission in the nature of a writ, issued in cases of al- leged lunacy, to inquire whether the party charged is a lunatic or not. For a history of these commissions and account of the modern law govern- ing them, and regulating the forms and modes of procedure, and the effect of a finding of lunacy, see Rat/, Med. Jur. Ins.; Ordron. Jud. Asp. Ins. 225. For course of proceeding and forms under recent New York laws authorizing inquisitions before state commissioner in lunacy, see cases reported, 3 Abb. N. Cas. 187-288. De medietate linguae. Of half tongue; half of one language and half of another. A term applied to a jury consisting one halt of denizens or na- tives, and the other half of aliens. De melioribus damnis. Of the better damages. Where, in a suit for damages against several defendants, damages were assessed against each of them, sev- erally, the plaintiff might select the best of them against whom to take judg- ment, his choice was termed an election de melioribus damnis. De mercatoribua. Of merchants. The title of the English Stat. 13 Edw. 1., ch. 3, enacted to facilitate the collec- tion of debts contracted in trade. An earlier statute for the same purpose, and sometimes called also the statute de mer- catoribus, is better known as the statute of Acton Burnell, from the village where it was enacted. DE 345 DE De minimis non curat lex. The law does not concern itself about trifles. Although frequently cited as a maxim, this principle is not of general application, and is not to be received, at least in its literal sense, without many exceptions and reservations. As a general rule, the law does take cogniz- ance of matters of small pecuniary value or trivial importance ; and does not re- fuse to regard matters otherwise prop- erly within its cognizance, merely be- cause the question raised or the amount involved is of small consequence. Every legal right, no matter of what value or extent, may be enforced; and every wrong, however slight, has its appropri- ate remedy. The same principle applies in the criminal law. For example, every felonious taking of property is criminal, whatever may be the value of the property. It is obvious that if the law should assume to determine, in the first place, what cases are and what are not of sufficient importance for the application of its principle, and should decline to adjudicate upon questions deemed unimportant, positive injustice must often result. The rules of law usually cited as illustrating this maxim seem to rest upon other considerations, or to be of limited application. Thus the rule that the diminution of the quan- tity of running water, resulting from the reasonable use of it by a riparian pro- prietor, gives no right of action to a pro- prietor below ; and the similar rules, that the diminution of the quantity of light enjoyed by another, or the impairing the natural purity of the air, by the proper and reasonable use of one's own property, or of that which is the common property of all, constitute no ground of action, — seem to proceed not so much on the principle that such injuries are tri- fling in their nature and extent, as that they are necessary incidents to the com- mon enjoyment by all of the common property. Embrey v. Owen, 6 Exeh. 369. And the rule that the law takes no notice of fractions of a day in the computation of time is never regarded by the courts in oases where there are conflicting rights, for the determination of which minute portions of time must be considered. Broom Max. 142. The jurisdiction of appellate courts has been frequently limited by legisla- tion to a certain minimum amount. But, in general, the superior courts of original jurisdiction hear and determine all suits, without reference to the mag- nitude of the amount demanded or the extent of the injury claimed; except as the right to costs may be affected by the amount of the recovery. Even upon the question of granting a new trial, this maxim is not of general applica- tion. Lord Kenyon, Wilson v. Rastall, 4 Dumf. §• E. 753, remarks, " Where the damages are small, and the question too inconsiderable to be retried, the court have frequently refused to send the case back to another jury. But wherever a mistake of the judge has crept in and swayed the opinion of the jury, I do not recollect a single case in which the court have ever refused to grant a new trial." But as to mere technical defects, tri- fling irregularities, or omissions of estab- lished forms not affecting substantial rights, the maxim fully applies; and the com'ts do not take notice of trifling deviations in matters of pi-actice. In equity jurisprudence, also, the maxim has a general application in cases where the common law affords no adequate remedy, and equity applies a remedy whenever the importance of the case renders equitable interference fit- ting and proper. Thus the power of equity to relieve against fraud, accident, and mistake would scarcely be exercised in a case where the injury apprehended was, at most, trivial in extent. In this application, the maxim corresponds with that of the civil law, from which it is probably derived, de minimis non curat prcetor ; freely translated, the praetor does not apply his equitable remedies in matters of small importance ; the reme- dial powers of the Roman prsetor being' analogous to the jurisdiction of equity where no remedy was given by the com- mon law. Trayn. Max. 137. The maxim de minimis non curat lex la never applied to the positive and wrongful invasion of one's property. To warrant an action in such a case, the degree of damage is wholly immaterial; it is enough that there should be a plain violation of right and a possibility of damage. Seneca DE 346 DE Road Co. V. Auburn, &c. E. R. Co., 5 BiU, 170. The maxim is not an appropriate an- swer to an action for violating a clear legal right ; as for an injury to a plank-road by tearing up the planks. EUicotA'ille, &c. Plank-road Co. v. BufEalo, &c. R. K. Co., 20 Barb. 644. Under the maxim de minimis nan curat lex, while a defendant may be liable in tres- pass for taking ice from a pond where it covers lands in which he has no right or li- cense, it is clearly not a case to invoke the aid of a court of equity to restrain such an act by injunction. Marshall v. Peters, 12 How. Pr. 218. The maxim may properly be opposed to an effort to restrain by injunction the pub- lication of a solitary letter, which, as far as the complaint shows, has no literary merit, is of no actual value, and the publication of which would not be productive of injury, nor offend the most delicate sensibility. Woolsey v. Judd, 4 Duer, 596. If a party acting in good faith, and with a determination to do what he has con- tracted to do, should, unintentionally, and without any negligence, happen in some trifling and unimportant matter to vary or depart from the terms of his agreement, the law is not so severe and exacting as to deprive him of all compensation. It ever regards the substantial rights of parties, but overlooks trivial and unimportant mat- ters. Smith V. Gugerty, 4 Barb. 614. De non appareutibus et non ez- istentibus eadem est ratio. Con- cerning things which do not appear and things which do not exist, the rule is the same. Things which are not made to appear are regarded as if they did not exist. This is a well-established max- im, and of frequent application. A lit- igant who relies upon deeds or other writings as the ground of the rights he claims, must produce the documents, or prove their contents in some legal and sufficient mode; the court will not as- sume that a deed exists, or that its terms are as averred, if these matters are dis- puted. In reading an affidavit, also, the court will look only at the facts deposed to, and will not presume the existence of additional facts or circumstances to support the allegations contained in it. In general, every thing not produced or proved, and of which the court cannot take judicial notice, is regarded, for the purposes of the particular case, as not existing. By appellate courts, the rule is applied to the record on appeal or error; objections not appearing on the record not being regarded. Where a possible claim under a lease was suggested, but no proof was made of the contents of the lease, or whether it had or had not expired, the court de- clined to take into consideration any supposed interest under the lease, upon the ground that de non apparentibus et de non existentibus eadem est ratio. John- son V. Stagg, 2 Johns. 510. De novo. Anew; a second time. As where a judgment is reversed after trial of an issue of fact for error by the court upon the trial, there must be a venire de novo that the entire case may be again submitted to a jury. De odio et atia. Of hatred and ill- will. The name of a writ anciently used to enforce the right of an accused to give bail. It was directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was com- mitted upon just cause of suspicion, or merely propter odium et aliam. If upon the inquisition due cause of suspicion did not appear, then there issued another writ commanding the sheriff to admit the prisoner to bail. Bracton says that Magna Charta ordained that it should issue of course to any one, without denial, and gratis. It was abolished by Stat. 28 Edw. III. ch. 9. But Lord Coke considered it to have been revived by Stat. 42 Edw. III. ch. 1. 3 Bl. Com. 128. It has, however, altogether passed out of use, having practically been su- perseded by the writ of habeas corpus. De perambulatione faoienda. For making a perambulation. The name of a common-law writ for ascertaining the boundaries of lands. A similar proceed- ing is authorized by statute in some of the United States in regard to lines be- tween towns. De ratlouabili parte bonorum. For a reasonable portion of the goods. The name of a writ which lay to compel an executor to surrender to the wife and children of testator their reasonable share of the assets. De retoruo habendo. For having a return; to have a return. The techni- cal name of a judgment for awarding to the defendant in an action of replevin a retm-n of the goods replevied. The writ or execution issued upon such a judg- ment was also termed a writ de retorno DEACON 347 DEALER hahendo. The term was also applied to the surety given by the plaintiff on com- mencing the action, for a return of the property. De son tort. Of his own wrong. A person who takes upon himself to act as executor, without any sufficient author- ity, is terilied an executor de son tort. De son tort demesne. Of his own wrong. The law French equivalent of the Latin phrase de injuria, q. v. De ventre inspiciendo. For inspect- ing the womb. The name of a writ for examining a woman suspected of feign- ing herself pregnant, in order to ascer- tain whether she is with child or not. De vioineto. From the neighbor- hood. The name applied to a particular kind of jury, which in certain cases the sheriff was directed to summon from a particular vicinity; sometimes termed, in English, a jury of the vicinage. DEACON. In the Church of Eng- land, deacon is the lowest degree of holy orders. (1 Bl. Com. 388; 2 Steph. Com. 660, 684.) Mozley §• W. DEAD FREIGHT. When a mer- chant who has chartered a vessel puts on board a, part only of the intended cargo, but yet, having chartered the whole vessel, is bound to pay freight for the unoccupied capacity, the freight thus due is called dead freight. Mc- Cull. Comm. Diet. . DEAD PLEDGE. A thing pledged for a debt, but not delivered to the creditor, was formerly called a dead pledge; and one which was delivered, a living pledge, because the creditor had, incidentally, the use or enjoyment of it. But the French form of the term, mort- gage, has superseded dead pledge; and pledge alone is now used for the expres- sion living pledge. DEADLY WEAPON. Signifies such weapons or instruments as are made and designated for offensive or defensive pur- poses, or for the destruction of life, or the infliction of injury. Commonwealth b. Brau- ham, 8 Busk, 387. It is not error for a court to refuse to in- struct the jury that an unloaded pistol with- out a cap upon it is not a deadly weapon. Floumoy v. State, 16 Tex. 31. DEAL. To traffic; to transact busi- ness ; to trade. Makers of an accommoda- tion note are deemed dealers with whoever discounts it. Vernon i; Manhattan Co., 17 Wend. 62-4. A provision in a charter of a bank of dis- count and deposit, tliat it "shall not deal or trade in any thing except bills of ex- change, gold and silver," &c., is not to be construed as forbidding the bank to pur- chase by way of discount, or receive in pay- ment of a debt, promissory notes of indi- viduals ; its intent is to forbid buying and selling in trade for profit, as distinguished from a banking business, which is always carried on by discounting. Fleckner b. Bank of United States, 8 Wheat. 338. The discounting by a bank of bills of ex- change, secured by a deposit of cotton to be shipped by the bank, and the proceeds cred- ited to the borrower, is not a violation of a provision forbidding it to " deal in goods, wares, and merchandise, in any manner whatever, unless it be to secure a debt due the said bank incurred by the regular trans- actions of the same." The word deal, in such a clause, means to buy and sell for the purpose of gain, perhaps including receiv- ing to sell on commission. The same rule of construction which is applied to a clause giving power to deal, &c., is not proper in the case of a clause forbidding dealing. Bates V. State Bank, 2 Ala. h. s. 451. A prohibition to purchase or deal in land does not necessarily forbid taking a mort- gage to secure a debt. Blunt v. Walker, 11 Wis. 334. Dealer. A statute requiring "dealers in tobacco " to take out a license should be construed as applying only to persons who make such dealing a usual vocation. Car- ter V. State, 44 Ala. 29. An ordinance of a city, which required dealers in second-hand goods to procure a license, declared that " any person who keeps a store, office, or place of business, for the purchase or sale of second-hand clothing, or garments of any kind, or second- hand goods, wares, or merchandise, is hereby declared to be a dealer " in second-hand goods." It was held that booksellers, deal- ing in such stock as is usually kept in a retail book-store, who buy and sell, in con- nection with their other business, and as incidental thereto, second-hand books, are not " dealers in second-hand goods," within the meaning of tlie ordinance. Eastman v. City of Chicago, 79 lU. 178. Making a single sale of a stock of liquors, in gross, does not constitute the seller a dealer, or enable the buyer to resist pay- ment of his note for the price, on the ground that the seller has not paid tax to the State as a dealer. A dealer is one who makes successive sales, as a business. Over- all V. Bezeau, 37 3iich. 606. In order to constitute one a dealer in spirituous liquors, it is not necessary that he should actually do the business in per- son, or even that it should be done in his presence, or by his express command. One who keeps liquors, and employs clerks to sell them, is liable for sales made by such clerks equally as if made by him in person. State V. Dow, 21 Vt. 484. DEAN 348 DEBT DEAN. An ecclesiastical dignitary next in rank to the bishop, and head of the chap- ter of a cathedral. A dean and chapter is a spiritual corpo- ration, and forms the council of the bishop, assisting him with advice and management in spiritual matters, and also in the tem- poral concerns of the diocese. Dean of the arches. The judge of the arches court, so called because he anciently held his court in the church of St. Mary-le- Bow, — Sancta Maria de arcubus. (3 Bl. Com. 64, 65; 3 Steph. Com. 306.) Modey Sr W. DEBAUCH. To entice, to corrupt, and, when used of a woman, to seduce. Origi- nally, the term had a limited signification, meaning to entice or draw one away from his work, employment, or duty ; and from this sense its application has enlarged to include the corruption of manners and vio- lation of the person. In its modern legal sense, the word carries with it the idea of "carnal knowledge," aggravated by as- sault,violent seduction, ravishment. Koenig V. Nott, 2 Hilt. 323. DEBENTURE. An instrument in the nature of a deed-poll, securing repay- ment of money owing or advanced out of some specific property fund or source of income. The word is also applied to a spe- cies of certificate issued by customs oflicers, showing that one who has im- ported goods is entitled to receive a specified sum by way of bounty or draw- back. Debenture signifies, 1. A custom-house certificate to the effect that an importer of goods is entitled to " drawback." 2. A bond in the nature of a charge on government stock, or on the stock of a pub- lic company. Mozley §• W. DEBET. He owes. Used in the fol- lowing phrases : Debet et detinet. He owes and de- tains. In the old forms employed in the common-law action of debt, if the action was between the original con- tracting parties to the obligation in suit, the plaintiff used to declare that de- fendant " owes and detains " the money due. If the action was between repre- sentatives, the allegation was " detinet " only: he detains it. Debet et solet. He owes and is used to. Technical words anciently used in writs where suit was brought to recover a right of which the plaintiff was for the first time disseised, and where the right and the custom wei-e both relied on as grounds of the claim. Such a writ was framed in the debet et solet if the plaintiff sued for something which was now for the first time withheld ; but in the debet only where his ancestor had been dis- seised, and plaintifi had inherited the right. See Termes de la Ley. Debitum in prsesenti, solvendum in futuro. Owed now, but payable in future. A phrase descriptive of that class — a very large one — of debts or obligations which are complete and per- fect, but payment of which cannot be demanded until a future day. DEBT. The primary meaning of the word is an obligation to pay a sum of money founded on contract or estab- lished by judgment. Debtor: the per- son who owes a debt. Debtee (seldom used) : one to whom a debt is due. %'UXA'. A debt is a sum of money due by con-^ j] tract. It is most frequently due by a cer- A tain and express agreement, which fixes the '^ amount, independent of extrinsic circum- stances. But it is not essential that the contract should be express, or that it should fix the precise amount to be paid. United States V. Colt, 1 Pet. C. Ct. 145. The term a debt imports a sum due, aris- ing upon a contract, expressed or implied, and not a mere claim for damages. Zinn V. Ritterman, 2 Abb. Pr. s. 6. 261. The legal acceptation of debt is a sum of money due by certain and express agree- ment. Whatever the law orders any one to pay is a debt ; e.g., a judgment for costs. Andrews v. Murray, 9 Abb. Pr. 8, 14. Costs which accrue on conviction in a criminal cause do not form a debt, within a provision abolishing imprisonment for debt. Caldwell v. State, 55 Ala. 133. A liability upon breach of warranty is a " debt," within the meaning of the statute which provides for suits against stock- holders, in the event of dissolution of a cor- poration. Dryden v. Kellogg, 2 Mo. App. 87. The expression "debt or damages de- manded," in certain jurisdictional statutes, refers to the ad damnum in the writ, without regard to the amount claimed in the declara- tion, or proved. Clay v. Barlow, 123 Mass. 378. " Debt " does not embrace taxes ; and a statutory privilege of using as an off -set any debt or demand on which a right of action exists does not entitle a town to set off its claim for taxes against its indebtedness to the person owing the tax, for his services. Hibbard v. Clark, 56 N. H. 155. Whether an obligation to pay money im- posed by a contract becomes a debt, until the money is payable, see Weston ». City of Syracuse, VI N. Y. 110; Garrison v. Howe, DEBT 349 DEBT Id. 458; Elwood v. Deifendorf, 5 Bafb. 398. Standing alone, the word debt is as ap- plicable to a sum of money which has been promised at a future day, as to a sum of money now due and payable. To distin- guish between the two, it may be said of the former that it is a debt owing, and of the latter that it is a debt due. Whether a claim or demand is a debt or not, is in no respect determined by a reference to the time of payment. A sum of money which is certainly and in all events payable, is a debt, without regard to the fact whether it be payable now or at a future time. A sum payable upon a contingency, however, is not a debt, or does not become a debt until the contingency has happened. Peo- ple V. Arguello, 37 Cal. 524. For a city to give its corporate bonds for the payment o£ money, is within a prohibi- tion against increasing the indebtedness of the city, notwithstanding the bonds are given for the purchase of new and valuable property. A debt is created when one per- son binds himself to pay money to another. The fact that property for which a debt is contracted is valuable, and a source of. profit or revenue, does not remove or change the character of the indebtedness. The purchaser, having become bound to pay, has incurred an indebtedness which he may be compelled to pay. Being thus bound, he is in debt, no matter what amount of property he may have received in con- sideration for his obligation. He has be- come indebted for its purchase. Scott v. Davenport, 34 Iowa, 208.' Debt is used of money due upon a con- tract, without reference to the existence of a remedy for collecting it. A liability of the party borrowing money to be sued is not essential to the creation of a debt. Baltimore v. Gill, 31 Md. 375, 390. Damages awarded for property taken for public use in virtue of the right of eminent domain, become, when assessed, a debt, in the sense in which that word is used in the section of the United States constitution forbidding the states to make any thing but gold or silver a tender in paj'ment of debts. A state law requiring a land-owner to ac- cept any thing else in payment of such damages is void. State v. Beackmo, 8 Blackf. 24G. Taxes are not debts in the ordinary sense of that word, but forced contributions for the support of the body politic. Green v. Gruber, 26 La. Ann. 694. A tax is not a debt, nor of the nature of a debt. It is an impost laid by government, and not founded on contract, while a debt is a sum due by certain and express agree- ment. It originates in, and is founded upon, contract, express or implied. A debt uni- versally bears interest from the time it is due. A tax never carries interest. A debt may be offset or reduced by set-off. A tax cannot be. City of Camden v. Allen, 26 N. J. L. 398. Debts, as used in the provision of the legal-tender acts declaring the notes issued under them to be legal tender in payment of all debts, public and private, does not include taxes. Its true sense is debts originating in contract, or demands car- ried into judgment. Lane County v. bregon, 7 WaU. 71 ; s. p. Perry v. Wash- bum, 20 Cal. 318. Debt has been differently defined, owing to the different subject-matter of the stat- utes in which it has been used. Ordinarily, it imports a sum of money arising upon a contract, express or implied. In its more general sense, it is defined to be that which is due from one person to another, whether money, goods, or services ; that which one person is bound to pay or perform to an- other. Under the legal-tender statutes, it seems to import any obligation by contract, express or implied, which may be dis- charged by money through the voluntary action of the party bound. Wherever he may be at liberty to perform his obligation by the payment of a specific sum of money, the party owing the obligation is subject to what, in these statutes, is termed debt. Kimpton v. Bronson, 45 Barb. 618. Debts is used in the act of congress of Feb. 25, 1862, declaring United States notes a legal tender for all debts, in no narrow or restricted sense, but rather in a broad and general one. The fare payable by a rail- road passenger, for his carriage on a rail- road, is a debt" within the meaning of the act. Lewis v. New York Central K. R. Co., 49 Barb. 330, 336. Whether debts, as used in the legal-ten- der acts, include express contracts to pay in coined dollars, see McGoon v. Shirk, 54 lU. 408 ; Wilson v. Morgan, 4 Rdbt. 58, 1 Abb. Pr. N. s. 174 ; Kimpton v. Bronson, 45 Barb. 618 ; Longworth v. Mitchell, 26 Ohio St. 334. The obligation to pay the condition of a mortgage bond is a debt within the legal- tender act. Kimpton v. Bronson, 45 Barb. 618 ; Dutton v. Pallaret, 52 Pa. St. 109. A claim for freight is a debt within the legal-tender acts. Wilson u. Morgan, 4 Robt. 58, 1 Abb. Pr. n. s. 174. Debt, as used in the bankrupt law, is synonymous with claim. Stokes v. Mason, 12 Bankr. Reg. 498 ; 10 R. 1. 261. Under the provision of a bankrupt law, that all persons owing debts shall be liable to be declared bankrupts, on the petition of one or more of the creditors to whom they owe debts, a creditor whose demand is not due may petition. A debt is not the less owing because not due. Exp. Tower, 1 N. Y. Leg. Obs. 8; Exp. King, Id. 276. Debts, in the provisions of a bankrupt law authorizing a discharge from all debts, &c., does not include a fine imposed by chancery for the wilful violation of an in- junction. Spalding v. People, 7 Hill, 301, 10 Paige, 284. A cause of action for a tort, though a verdict or a report of referees has been had upon it; if judgment has not been had, is not DEBT 350 DEBT a debt, and is not afEected by a, bankrupt discharge. Crouch v. Gridley, 6 HiU, 260 j Kellogg V. Schuyler, 2 Den. 73. It does not include a judgment for the payment of an allowance to support a bas- tard child, and a judgment for damages for seduction is not within the act. A judg- ment which is in form a debt, and recovered in a proceeding of a civil nature, is not to be regarded as a debt from which the de- fendant can obtain a discharge if the cause of action was not a debt, but a violation of duty or of the rights of others. Matter of Cotton, 2 N. Y. Leg. Obs. 370. The sum in which the putative father is charged with the maintenance of a bastard child is not a debt within the meaning of Ohio Const art. 1, § 15, declaring that " no person shall be imprisoned for debt in a civil action, unless in cases of fraud." Hus- eer o. Stewart, 21 Ohio Si. 353. As used in provisions of the Massa- chusetts insolvent law, Stat. 1838, ch. 163, ■regulating proof of debts, and return of surplus after payment of debts, the word includes interest on the demands proved, whether accruing upon contracts carrying interest by their terms, or allowed by rules of law. Brown v. Lamb, 6 Met. 203. Debts, as used in the Iowa homestead ex- emption act, includes the liability of a per- son who has obtained money through false and fraudulent representations, in the sale of a patent-right. Warner v. Cammack, 37 Iowa, 642. A cause of action for a tort, e.g. breach of promise of marriage, is not, before re- covery thereon, a debt within the provisions of the New York homestead act, declaring that the exemption thereby created shall not extend to a debt contracted prior to the record of exemption. Cook v. Newman, 8 How. Pr. 523. The homestead is not exempt from exe- cution on a judgment for tort, or for costs in an action of tort. Schouton v. Kilmer, 8 How. Pr. 527. Debts, in statutes imposing individual liability upon stockholders or officers for debts of a corporation, has been held to include : Certificates of deposit. Hargroves v. Chambers, 30 Ga. 580. An unliquidated claim for damages. Mill Dam Foundry v. Hovey, 21 Pick. 417, 454; Haynes v. Brown, 36 N. H. 545. A judgment for costs against the corpo- ration. Andrews v. Murray, 9 Ahb. Pr. 8. But not to include a claim for damages arising from negligence or misfeasance of servants of the corporation. Cable v. Mc- Cune, 26 Mo. 371; Cable v. Gaty, 34 Id. 573. As used in individual liability statutes, debt means the original debt contracted by the corporation, and not a judgment which the creditor may have recovered upon it. McHarg v. Eastman, 35 How. Pr. 205. The compensation due to an officer of the corporation, under an agreement to pay him by the year, does not become a debt within the meaning of a statute imposing an individual liability, until the expiration of a year, or until the earlier termination of the relation. Oviatt v. Hughes, 41 Barb. 541. A statute or by-law, that no corporator shall transfer his stock until all debts due by him to the bank are paid, includes complete liabilities, although not yet payable ; such as notes made, but not matured. Leggett V. Bank of Sing Sing, 24 N. Y. 283; SewaU V. Lancaster Bank, 17 Serg. Sf R. 285. Such a regulation embraces notes dis- counted by the bank, and is not confined to debts on account of original subscription to the bank. Rogers ». Huntingdon Bank, 12 Serg. ^ R. 77. Debts, as used in a statute regulating set- tlement of estates of deceased persons, is not limited to such as are strictly legal debts, but comprehends every claim and demand by a creditor, recoverable in law or equity. Babcock v. Lillis, 4 Bradf. 218 ; Sellis' Case, 4 Abb. Pr. 272. It may mean demands due to a person. Pme V. Bikert, 21 Barb. 469, 475. Debts, in the Mississippi statute subject- ing the real estate of a deceased person to the payment of his debts, when the person- alty is insufficient for that purpose, does not embrace the commissions allowed to the administrator. Hollman o. Bennett, 44 Miss. 322. A bequest of "whatever debts" might be due to the testator at the time of hia death, includes money at his bankers. Carr V. Carr, 1 Mer. 541. A bequest of "all debts due and owing" to the testator will pass a bond conditioned for replacing certain stock, the condition of which has not been complied with at the time of his death, the day stipulated there- for having passed ; although a residuary bequest includes " all his stocks." Essing- ton V. Vashon, 3 Mer. 434. Debts, in a power to sell, for payment of, includes a joint and several bond, executed by the testator as surety for his co-obligors. Berg V. Radcliff, 6 Johns. Ch. 302. When an official bond is so expressed as to render the surety jointly liable with the principal, a default of the principal fixes the liability of the surety, and the obligation to pay becomes a debt against the surety as well as against the principal. Shane v. Francis, 30 Ind. 92. As used in the statute providing for the collection of taxes imposed upon debts owing to non-resident creditors for purchase of real estate (Laws 1851, ch. 371), debts is to be understood in its usual legal sense, and means nothing more nor less than sums of money due from inhabitants of the state, to the non-residents mentioned by certain and express agreements or judicial sen- tence, and for the purchase of real estate. People V. Halsey, 53 Barb. 547, 36 How. Pr. 487, 37 N. Y. 344. A claim arising out of the official neglect of the clerk of a court is not a debt, which DECEDENT 351 DECISION will support a foreign attachment in chan- cery. Dunlop I.'. Keith, 1 Leigh, 430. A fine or penalty, incurred by the breach of a city ordinance, is a debt, and recover- able as such. Exp. Beed, 4 Cranch C. Ct. 582. The phrase, any debt or demand, in a statute allowing costs, includes a cause of action for a tort. White v. Hunt, 6 N. J. L. 415. Debts contracted in a statute relating to individual liabilities of members of manu- facturing corporations was held equivalent to dues owing or liabilities incurred. Car- ver V. Braintree Manufacturing Co., 2 Story C. Ct. 432, 449. A debtor is one who owes any thing, or one who is under obligations, arising from express agreement, implication of law, or from the principles of natural justice, to render and pay a sum of money to another. Stanly v. Ogden, 2 Root, 259. 2. Debt is also the name of a form of action, employed, in jurisdictions adhei-- ing to the common-law procedure, for the recovery of a sum certain, or vfhich may be made certain by computation. Thus debt, like assumpsit and covenant (ij. v.), is a name both for a right of action and for a remedy allowed for enforcing it. DECEDENT. Literally, a dying person. Generally used to designate a deceased person whose assets are in course of administration. DECEIT. 1. The employment of a cheat, or false statement, device, or pretence, to defraud another person, whereby he sustains loss. 2. The name of an English writ, now disused, which lay for one injured by a deceit; also, of a species of action after- wards allowed in like cases. The word deceit, as well as fraud, excludes the idea of mistake, and imports knowledge that the artifice or device used to deceive or defraud is untrue. Farwell v. Metcalf, 61 m. 373. The word deceit, in a statute, held equiv- alent to cheating by false pretences. State V. Christianbury, Biisb. L. 46. , A writ of deceit used formerly to lie, and now an action on the case in the nature of a writ of deceit lies, where the plaintiff has received injury or damage through the de- ceit of the defendant or of his agent, where the defendant was privy thereto. Brown. DECEM TALES. Ten such. The name of a writ requiring the sheriff to appoint ten like men to make up a full jury, when a sufficient number do not appear. DECENNARY. A tithing or a civil division of England composed of ten free- holders with their families. The institution was introduced by the earliest Saxon set- tlers, and some say by Alfred. Brovm. DECIES TANTUM. Ten times as much. The name of a writ which for- merly lay in English practice against a juror who had taken money of either party for giving his verdict, to recover ten times as much as the sum taken. It also lay against embraoeors for intei- meddling with a jury. The statutes upon which the proceeding was founded were repealed by Stat. 6 Geo. IV. ch. 50, § 62. DECISION. The result of the delib- erations of a tribunal; the judicial de- termination of a question or cause. The word coiTesponds quite nearly with judg- ment or decree, but is either somewhat more abstract, or somewhat more exten- sive. 1. In the more abstract sense, the deci- sion is the resolution of the principles which determine the controversy; the judgment is the formal paper, applying them to the rights of the parties. The court announces its decision; the attor- ney draws up, and the judge signs, the judgment. Decisions are reported; but the reports do not generally present the judgments: they are recorded or docket- ed, while decisions are not. Decisions are followed, or are overruled; judgments are affirmed or reversed. Overruling a decision does not impair the effect of the judgment. 2. In the more extended sense, deci- sion is used for the formal entry of determinations which cannot quite be called judgments, decrees, or orders ; or may include all kinds of determinations, — those which are strictly known by these three names, and others of extra- judicial character. A provision authorizing an appeal from decisions of county commissioners will be applied to include every ruling, final in its nature, upon any subject upon which the board of county commissioners are not au- thorized to take legislative action. Hanna V. Commissioners of Putnam County, 29 Ind. 170. Wis. Laws 1860, ch. 264, § 7, requiring appeal papers to be remitted together with the judgment or decision within thirty days, appUes to an order of dismissal. Estey v. Shecklcr, 36 Wis. 434. The phrase, decision of the collector, in act of June 80, 1864, § 14, concerning im- DECLARATION 352 DECLARATION portations, means the ascertainment and liquidation of the duties in the usual man- ner by the proper officers. United States V. Consinery, 7 Ben. 251. DECLARATION. 1. Any allega^ tion or assertion, expressly and explicitly made, in whatever form or manner com- municated. Thus we speak of a per- son's being estopped by his declarations; of a witness being impeached by proof of his declarations out of court; of prov- ing a testator's declarations to show his intent. And the word occurs in several phrases, mentioned below. Declaration of independence. A state paper issued by the congress, in the name of the people of the united colonies, on July 4, 1776, in which they set forth various causes of complaint against the government of the king of Great Britain, and the grounds on which they claimed to dissolve relations with that power ; and declared that the united colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown ; and that all political con- nection between them and the state of Great Britain is, and ought to be, dis- solved. It is from the promulgation of this paper that American jurisprudence dates the independent existence of the United States ; though several years of war were necessary to obtain recognition of that independence from Great Britain. Declaration of intention. This phrase may be used of any assertion of purpose which may be drawn in ques- tion in legal proceedings. It most fre- quently signifies a declaration required, by the naturalization laws, to be made before a court of record by an alien de- siring to become a citizen, that it is bona fide his intention to become a citi- zen of the United States, and to renounce for ever all allegiance and fidelity to any foreign prince, potentate, state, or sove- reignty whereof at the time he may be a citizen or subject. This declaration, duly made in writ- ing, and officially certified, becomes an important element in his subse- quent application for admission to cit- izenship. Declaration of Paris. The name of a certain declai-ation respecting inter- national maritime law, promulgated by leading European powers, at the con- gress of Paris in April, 1856. It em- bodies the following rules: 1. Privateering is and remains abol- ished. 2. The neutral flag covers enemy's goods, except contraband of war. 3. Neutral goods, except contraband of war, are not liable to confiscation under a hostile flag. 4. Blockades, to be binding, must be effective. Declaration of trust. A paper sub- scribed by a grantee of property, ac- knowledging that he holds it in trust for the purposes and upon the terms set forth. A trust may be created either by a conveyance which expresses that it is made upon the trust, or by giving an ordinary deed, and taking back from a grantee his declaration that he receives the property in trust. Declaration of Tvar. A manifesto, or proclamation, issued by the sovereign power of a nation, making known that war exists between it and another na- tion named. 2. In pleading, the declaration is the first pleading on the part of a plaintiff in a common-law action, corresponding to a bill in equity, or a complaint in a civil action under the reformed codes of procedure, wherein the plaintiff sets forth the particular facts constituting his cause of action against the defend- ant, and states his claim of damages. In origin and theory, it is an expansion of the plaintiff's original writ, wherein he expresses at large his cause of action or complaint, with the additional circum- stances of time when and place where the injury was committed. Cheetham V. Tillotson, 5 Johns. 430. The declaration generally comprises the following parts : Title and date, In the queen's bench, the 10th July, 1874 ; Venue, Middlesex, to wit; Commencement, A B by C D, his attorney \or in person], sues E F for . . .; Body of declaration, con- sisting of the following parts (which, how- ever, are not all necessary in every form of action), viz. ; Inducement, being introductory merely, and rarely requiring proof ; Aver- ments, being usually the allegation of the performance of all precedent conditions, &c., on the plaintifE's part ; and Counts, contain- DECLARATORY 353 DEDI ing statement of defendant's breach of con- tract or other injury j Conclusion, " And the plaintiff claims £ ." Brown. DECLARATORY. When applied to a statute or act of legislation, denotes that the act does not assume to prescribe any new rule of law, but to give a clear and certain statement of the existing law ; which, it may be, was involved in uncertainty or dispute, rendering an au- thoritative assertion of the true rule ex- pedient. DECLARE. 1. Is often used in the vernacular sense as equivalent to affirm, allege, or assert; implying positiveness or distinctness; but not importing any thing as to manner or form of making the communication. Declarant : one who declares. Where a statute required an official oath to be in the words " I promise and affirm," an oath in which the words " declare and affirm " were used was held sufficient. Bas- sett V. Denn, 17 N. J. L. 432. 2. When used with reference to plead- ing, declare means to set forth in a for- mal writing, served when an action ac- cording to the common law has been commenced, the cause of action and claim of recovery which plaintiff alleges against defendant. DECREE. A decision, by a sufficient authority, determining what is to take place or to be done in a particular matter. In English and American law, the de- cision or sentence of a court of equity or admiralty corresponding to the judg- ment of a court of common law. Decrees in equity are either interlocutory or final. An interlocutory decree is given on some plea or issue arising in the cause which does not decide the main question ; a final decree disposes of the entire matter in dispute, and has the same effect as a judgment at law. They are also classed as, 1, decrees by default, against parties who do not appear, in which case the plaintiff takes such decree as he can stand by; 2, decrees by consent, in which cage the form of the decree de- pends upon the mutual agreement of the parties ; 3, decrees taking the bill pro confesso, in which case the decree is according to the case made by the bill; and, 4, decrees on the hearing of the cause in the presence of all parties, in which case, if the plaintiff have any VOL. 1. 23 equity, there is a decree embracing the objects of the suit, which varies with the nature of the suit and the relief prayed. In jurisdictions where the distinction, between proceedings at law and in equity have been abolished, decree is sometimes applied, although not with technical accuracy, to the judgment in a suit equitable in its nature. The term decree is frequently used by the legislature and courts of California to distinguish a sentence or judgment of the court in a suit in equity, or in respect to the equitable branch of an action or proceeding at law, from a judgment in an action or the branch of the action determined upon legal as contradistinguished from equitable prin- ciples ; the term being employed, not as a designation of something different from a judgment, but rather as a judgment of a particular character. McGarrahan v. Max- well, 28 Cal. 76, 85. Decree is the judgment of a court of equity, and is, to most intents and purposes, the same as a judgment of a court of com- mon law. A decree, as distinguished from an order, is final, and is made at the hear- ing of the cause, wherea* an order is inter- locutory, and is made on motion or peti- tion ; wherever an order, may, in a certain event resulting from the direction contained in the order, lead to the termination of the suit in like manner as a decree made at the hearing, it is calle(J a decretal order. Brovm. DECREET or DECREE. Is the Scotch law term for the final jtidgment or sentence of a court, whereby the question at issue between the parties is decided. Decrees are said to be either condemnator or absolvitor; the former term being applied where the decision is in favor of the pursuer, the latter where it is in favor of the defender. Bell. The decree, of course, partakes of both characters when the defender is absolved in part and condemned in part. lb. DECRETAL ORDER. An order made by a court of chancery, upon & motion or a petition, in its nature and effect resembling a final decree, but in form merely an order. An order in a chancery suit made on motion or otherwise not at the regular hear- ing of a cause, and yet not of an interlocu- tory nature, but finally disposing of the cause, so far as a decree could then have disposed of it. Hunt. Eg. ; Motley ^ W. DEDI. I have given. Employed as the technical, operative word of grant, in the Latin forms of deeds. This word, together with its English DEDICATION 354 DEED ^, equivalent were formerly held, in Eng- land, to imply a warranty of the title to the land or estate conveyed; but this rule has been changed by statute. ^^ DEDICATION. An appropriation by an individual of some property or right to the use of the community; de- votion to public uses. Thus there may be a dedication of lands to public use ; and this may be either a common-law dedication, which does not divest the fee, but secures the public right to use the land according to the dedication, or' under statutory regulations, in some of the states, pursuant to which the title passes. At common law, no particular formalities are required to a dedication. It may be made by deed, or by word of mouth, or even by a course of conduct, as where a land-owner throws open his land, and assents to its being used by the public. The essential elements are, 1, the assent of the owner; 2, that it should be to some public use; 3, accept- ance by the public or public authorities, which may be manifested by mere gen- eral user. When these concur, the land- owner is concluded, and cannot after- wards withdraw the property. Dedication is an appropriation of land by the owner for public uses. Barteau !'. West, 23 H^i's. 416, 420. Dedication is the devoting or giving property for some object, and in such man- ner as to conclude the owner. It may be without writing, by act in pais, as well as by deed. Hunter v. Trustees of Sandy Hill, 6 HiU, 407. If the owner of land consents, either ex- pressly or by his actions, that it may be used by the public for any particular pur- pose, this is a dedication thereof to the pub- lic use. Mayor, &c. of Macon v. Pranklin, 12 Ga. 239. No particular form is necessary to make a dedication. A grant is not required. It may be made by parol and proved by parol. All that is necessary is the assent of the owner, and the fact that it has been used by the public for the purpose of the appro- priation. The fee remains in the maker of the dedication. To nearly same effect, Ha:ll V. McLeod, 2 Mete. 98; Institute for the Blind v. How, 27 Mo. 211 ; Oswald v. Grenet, 22 Tex. 94. When the owner of lands procures them to be laid ofE in blocks, streets, and squares, and has a map made, on which are deline- ated such streets and squares, which he files among the public records of the coun- ty, and by reference to which he makes sales of lots, the streets and squares, as laid down on such map, become thereby dedi- cated to public use. Methodist Episcopal Church c. Hoboken, 33 N. J. L. 13 ; Baton Rouge V. Bird, 21 La. Ann. 244. A merely permissive use by the public of an alley in subordination to that of the owner's tenants, though for more than twenty years, is not such an adverse use as will constitute a dedication to public use, or an acceptance of a dedication. Brinck v. Collier, 56 Mo. 160. The essence of a dedication to public uses is that it shall be for the use of the public at large ; there can be no dedication, prop- erly speaking, to private uses. Methodist Episcopal Church v. Hoboken, 33 N. .T. L. 13. Neither the act of congress of March 3, 1849 (the organic law of the territory of Minnesota), — which declared that when the public lands in that territory shall be surveyed, certain sections, designated by numbers, shall be, and " hereby are," " re- served for the purpose of being applied to schools," — nor the subsequent act of Feb. 26, 1857, — providing for the admission of that territory into the Union, and making the same reservation for the same object, — amounts so completely to a " dedication," in the stricter legal sense of that word, of these sections to school purposes, that con- gress, with the assent of the territorial leg- islature, could not bring them within the terms of the pre-emption act of 1841, and give them to settlers who, on the faith of that act, which had been extended in 1854 to the territory, had settled on and improved them. Minnesota v. Baehelder, 1 Wall. 109. The first publication of a work, without having secured a copyright, is a dedication of it to the public ; that having been done, any one may republish it. Bartlett v. Crit tenden, 5 McLean, 32; 7 West. Law .J. 49; Pulte V. Derby, 5 McLean, 328. DEDIMUS. The brief name of a commission to take testimony. Dedimm potestatum — we have given power — were the initial words of a wi-it or com- mission in English practice, which is- sued out of chancery, empowering the persons named therein to perform cer- tain judicial acts, — as to administer oaths to defendants in suits in chancery, and take their answers, to examine wit- nesses, &c. Hence, in the United States, a commission to take testimony is often termed a dedimus potestatum, or a dedi- mus ; and the term is seldom used in any other sense. DEED. Deed is somewhat used in jurisprudence, in its general, vernacular sense of an act; something done. More frequently it has a technical meaning, denoting, 1, a written instrument under seal; and 2, and more specifically, a conveyance. DEED 355 DEED In the first and broader of these mean- ings, deed includes all varieties of sealed instruments ; even bonds and executory contracts under seal may be included by the term ; and stiU more clearly may as- signments, leases, mortgages, and re- leases. The characteristic incidents of a deed, in this general sense, are writing upon paper or parchment, a seal, and a delivery. Early English authorities omit signature as an essential; though in practice and in American usage it seems necessary. In the second, and more common yet narrower meaning, deed signifies a writ- ing under seal conveying real estate. It is substantially the same in extension as conveyance, q. v. ; except that convey- ance points to the transaction, the trans- fer, while deed points to the form, the instrument. The leading parts or clauses of a, deed, in the usual arrangement, are the following, — Commencement : this sets forth the style and character of the deed, and names the parties and character in which they ]oin; and here, in indent- ures, the date is usually given; while in deeds-poll it is stated at the close. Re- citals: these briefly narrate any facts necessary to explain the motive or pur- pose of the deed, or the operation of its provisions. The testatum clause: it states the consideration, and avows that the grantor conveys, using operative words of transfer, to the grantee. The description: this sets out, usually with minute and accurate detail, the bounda- ries of the property conveyed. The habendum : this discloses what estate or interest is given; in what right the grantee is to take and hold; and in- cludes, or is followed by, a declaration of the trust intended, if the pi'operty is con- veyed upon a trust. Conditions, powers, and covenants, necessary to carry into effect the full intentions of the parties, next follow. The conclusion, or testimo- nium or testificandum clause, certifying the execution, closes the_ instrument. A deed is a writing, sealed and delivered by the parties. It is called a deed, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles, instar dentium, like the teeth of a saw, but at pres- ent in a waving line), on the top or sides, to tally or correspond with the other ; which deed, so made, is called an indenture. For- merly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, beginning at the middle and continuing to the con- trary ends, with some words or letters of the alphabet written between them through which the parchment was cut, either in a straight or indented line, in such a manner as to leave half the word on one part and half on the other. But at length, indenting only has come into use, without cutting through any letters at all ; and it seems at present to serve for little other purpose than to give name to the species of the deed. A deed made by one party only is not indented, but polled or shaved quite even ; and therefore called a deed-poll, or a single deed. This is a deed testifying that only one of the parties to the agreement hath put his seal to the same, where such party is the principal or only person whose consent or act is necessary to the deed, and it is therefore a plain deed, without indent- ing, and is used when the vendor, for exam- ple, only seals, and there is no need of the vendee's sealing a counterpart, because the nature of the contract is such as to require no covenant from the vendee, &c. All the parts of a deed indented, in judgment of law, make but one entire deed ; but every part is of as great force as all the parts to- gether, and they are esteemed the mutual acts of either party, who may be bound by either part of the same, and the words of the indenture are the words of either party &c. But a deed-poll is the sole deed of him that makes it, and the words thereof bind him only. Jacob. Deed is a writing on parchment or paper, sealed and delivered. Acknowledgment is not a necessary part of a deed. Wood v. Owmgs, 1 Cranch, 239, 241. The word deed, in its largest sense, in- cludes a mortgage ; but when the language of a contract shows that deed was used therein in a limited sense, and as meaning an instrument conveying the title to land, it will not be held to include a mortgage, in construing the contract. Hellman v. How- ard, 44 Cat. 100. As used in Mich. Comp. Laws, § 5803, against forgery, deed includes a mortgage. People V. Caton, 25 Mich. 388. The words "good and sufficient deed," in a contract to convey land, refer only to the form of conveyance, and not to the inter- est intended to be conveyed. Brown v. Covilland, 6 Cal. 566. An agreement to make a " deed " and to " convey " requires such a conveyance as will give the vendee a sufficient title in view of the provisions of the statute which defines what is necessary to be contained in a deed. Parker v. McAlUster, 14 Ind. 12. DEED 356 DEFEASANCE A covenant to convey land, " the title to be a good and suffiuient deed," is a cove- nant to convey a good title by deed. Brown v. Gammen, 14 Me. 276. A covenant to give " a good and perfect deed " to land, is a covenant to give a per- fect title to such land, free and clear of all incumbrances, including any rights of dower there may be therein. Greenwood V. Ligon, 18 Miss. 615. The covenant in a bond for title to make a " good and perfect " deed is not complied with by making a deed good in form only ; the title must be good to save the cove- nant. Feemster v. May, 21 Miss. 275 ; Wig- gins I). McGimpsey, Id. 532; Mobley v. Keys, Id. 677. A covenant to give " a good deed " does not require conveyance of a good title ; a good deed means a conveyance sufficient to pass whatever right the party has in the lands, without warranty or personal cove- nants. As the phrase, a good deed, has a meaning which is neither doubtful nor am- biguous, the courts have no right to depart from the plain meaning of the word deed, and stretch it to mean title, which is of so much larger and more comprehensive im- port, unless there is something else in the same instrument, or in the attendant cir- cumstances, to demonstrate that the parties intended title. Barrow v. Bispham, 11 N. J. L. 110. A covenant to execute a good and suffi- cient warranty deed of conveyance refers to the instrument only, and not to the title. Parker v. Parmele, 20 Johns. 130 ; Tinney V. Ashley, 15 Pick. 546 ; see Everson v. Kirt- land, 4 Paige, 628 ; Aiken v. Sanf ord, 5 Mass. 494. Under an agreement to give a "deed for the premises," the tender of a deed without covenants qr warranty is a suffi- cient performance ; nor is it necessary that the wife of the vendor should join in the deed. Ketchum v. Evertson, 13 Johns. 359. An agreement to sell a farm, and to exe- cute and deliver a warranty deed thereof, is not complied with by a deed from the husband only : the wife must join. Pome- roy V. Drury, 14 Barb. 418. By a lawful deed of conveyance may be fairly imderstood a deed conveying a law- ful or good title. Dearth v. Williamson, 2 Serg. Sr R. 498. A covenant " to give a good and war- rantee deed of land " refers to the kind of deed to be executed, and not to the quality of the title to be conveyed. It is not there- fore broken by the inability of the cove- nantor to convey a perfect title, on account of the existence of a prior mortgage. Joslyn V. Taylor, 33 Vt. 470. The words, " a good and sufficient deed, with covenant of warranty," in an agree- ment for the sale of land, will be held to mean "a good and sufficient title," if it ap- pears in the agreement, or its attendant cir- cumstances, that such was the intention of the parties. Tindall v. Conover, 20 N. J. L. 214. A contract to convey by a "good and sufficient deed, of general warranty" does not by itself include a covenant against in- cumbrances, nor bind the vendor to procure a release of his wife's dower. It amounts to no more than an engagement that it should bar the vendor and his heirs from claiming the land, and that he and his heirs should defend it when assailed by a para- mount title. Bostwick v. Williams, 36 III. 65. A covenant to make " a good and lawful deed, free from all incumbrances," is satis- fied by a deed of special warranty, where the parties intend and express their mean- ing to be " a warranty deed, subject to all the demands of the commonwealth." With- ers V. Baird, 7 Watts, 227. DEFALCATION. 1. The reduction of a claim or demand, by deducting a counter-claim; or, substantially the same as set-off. Thus notes are some- times expressed to be payable without defalcation or discount. 2. The failure of one who has received money in trust or in a fiduciai-y capacity to account and pay over as he ought. It is particularly applied to public and cor- porate officers. DEFAMATION. Diminution of repu- tation ; the wrong of maliciously injur- ing the good name of another person. It is either libel (q. v.), when done by writing, printing, or signs ; or slander (q. w.), when by oral communications. DEFAULT. The neglect or omis- sion of a duty, or failure to perform an obligation; also, the failure to appear and answer, in response to a writ or summons. /3 YT.N. JSV',/¥Xd i '9 Default cannot properly be predicated of a mere failure to appear on the day to which a cause has been continued by a jus- tice of the peace, where the defendant has once appeared and answered. Douglass o. Langdon, 29 Iowa, 245. DEFEASANCE. A collateral deed, made at the same time with a feoffment or other conveyance, containing certain condi- tions, upon the performance of which the estate then created may be defeated, or totally undone. ( Cowd ; 2 Bl. Com. 327 ; 1 Steph. Com. 526, 527.) So, a defeasance on a bond or recognizance, or judgment re- covered, is a cohdition which, when per- formed, defeats or undoes it. It is inserted in a separate deed in the same manner as the defeasance of an estate above men- tioned. (2 Bl. Com. 342.) Mozle;/ Sr W. Defeasance is of two sorts : 1. A collat- eral deed made at the same time with a feoffment or other conveyance, containing DEFENCE 357 DEFINITIVE certain conditions, upon the performance of which the estate then created may be de- feated or totally undone. 2. A defeasance on a bond, recognizance, or judgment re- covered, is a condition which, when per- formed, defeats that, in the same manner as the foregoing defeasance of an estate. This differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently by a subsequent, deed. A de- feasance may generally be indorsed on the back of the deed. To make a good defeasance, it must be, 1. By deed; for there cannot be a defea- sance of a deed without deed; and a writ- ing under hand doth not imply it to be a deed. 2. It must recite the deed it relates to, or at least the most material part thereof ; or, in case of indorsement, refer thereto. 3. It is to be made between the same persons that were parties to the first deed. 4. It must be made at the time, or after the first deed, and not before. 5. It ought to be made of a thing defeasible. Jacob, If that which may defeat a deed is in the same deed, it is called a condition ; that in another deed, it is called a defeasance. Com. Dig. tit. Defeasance. The proper definition of defeasance does not embrace the case of a bond given by the grantee named in an absolute deed of conveyance of lands, that he will convey the estate to a third person. This is quite a different transaction from one in which the absolute conveyance is simply defeated. Shaw V. Erskine, 43 Me. 371. Defeasances of land are now of rare oc- currence, the practice in modern times beiag to include in the same deed both the con- veyance of the land to the alienee, and the conditions, if any, to which it is to be sub- ject, and by which its effect may be de- feated. 1 Steph. Com, 545. DEFENCE. 1. The forcible resist- ance of an attack made with violence. This is justifiable, within limits, in various cases of an unlawful use of vio- lence. See ^LF-DEFENCE. 2. That wnioh is sulBcient to defeat a suit, or that which is offered to defeat one, either by denying the cause of action alleged, or by justifying it, or by confessing and avoiding it. In early English practice, the term seems to have been used to signify the mere technical denial in the plea of the cause of action, rather than the substan- tial ground set up to defeat it; but this employment of it is no longer common. Defence, in strictness, signifies an oppos- ing or denying of the truth or validity of a complaint. But it is used in the New York code (§§ 149, 153) in its more popular sense, and applies to any facts which defeat the action either wholly or partially. Stew- art V. Travis, 10 Bow. Pr. 148 ; Houghton v. Townsend, 8 Id. 441. It applies to matters which go to the partial as well as the total extinguishment of the plaintiff's claim. Foland v. Johnson, 16 Abb. Pr. 235. It does not include mitigating circum- stances. Newman v. Otto, 4 Sandf. 668. Defensive allegation. See Aluiga- TION. DEFENDANT. A person required to make answer in an action or suit. Defendant does not in strictness apply to the person opposing or denying the alle- gations of the demandant in a real action; he is properly called the tenant. The dis- tinction, however, is very commonly disre- garded ; and the terra is further frequently applied to denote the person called upon to answer, either at law or in equity, and as well in criminal as civil suits. Bouvier. The word defendant, in a judgment, em- braces all those who, by the record, are liable to the judgment. Clagget v. Blan- chard, 8 Dana, 41. Defendant may include parties who have a real and substantial interest adverse to the plaintiff, and against whom substantial relief is sought in an action, as well as a person named on the record as defendant. Allen V. Miller, 11 Ohio St. 374. Ordinarily, a statute which, in general terms, speaks of plaintiffs and defendants, applies to persons only, and not to states, counties, or municipal corporations. Schuy- ler Co. V. Mercer Co., 9 III. 20. But it may include corporations. Mor- gan V. New York & Albany R. E. Co., 10 Paige, 290. A garnishee is a " defendant in an action " within Rev. Stat. ch. 129, § 2, and an injunc- tion to restrain him from disposing of goods in his hands may issue against him. Malley v. Altman, 14 Wis. 22; Almy v. Piatt, 16 Id. 169. Defendant, in Mass. Gen. Stat. ch. 146, § 38, regulating procedure " upon the petition of the defendant" for a review, means the party against whom the judgment sought to be reversed is rendered, and not the de- fendant in the original action. Leavitt v, Lyons, 118 Mass. 470. DEFINITE. A definite faUure of issue is when a precise time is fixed by the will for the failure of issue, as in the case where there is a devise to one, but if he dies without issue, or lawful issue living at the time of his death, &c. An indefinite failure of issue is the period when the issue or de- scendants of the first taker shall become extinct, and when there is no longer any issue of the line of the grantee, without reference to any particular time or any par- ticular event. Huxf ord v. Milligan, 50 Ind. 542. DEFINITIVE. Bouvier, Burrill, DEFORCEMENT 358 DEI and Wharton define this word, in its application to judgments or decrees, as meaning one which determines a cause ; as being equivalent to final, and opposed to interlocutory or provisional. But the opinion of the United States supreme court, in United States v. The Peggy, 1 Cranch, 103, indicates a distinction between final and definitive, of this gen- eral nature, that a judgment is termed final, in the sense of exhausting the powers of the particular court in which it is rendered, but definitive in the sense of being above any review or con- tingency of reversal. The distinction is certainly convenient and worthy of attention. DEFORCEMENT. In modern us- age, is the holding of any lands or tene- ments wrongfully as against any person who has the right thereto, but who has not as yet at any time been in the pos- session thereof. The deforciant must have come in by right in the fiist in- stance; for if the person wrongfully holding came in by wrong in the first instance, he is not a deforciant, but either an intruder, a disseisor, or an abator. In Scotch law, deforcement signi- fies the offence of opposing a public offi- cer in the execution of his duty. Bell. A species of injury by ouster or priva- tion of the freehold, where the entry' of the present tenant or possessor was originally lawful, but his detainer is now become un- lawful. (3 Bl Com. 172.) For that at first the withholding was with force and violence, it was called a deforce- ment of the lands or tenements ; but now it is generally extended to all kind of wrong- ful withholding of lands or tenements from the right owner. In its most extensive sense it signifies the holding of any lands or tenement to which another person hath a right ( Co. Litt. 277) ; and Includes as well abatement, intrusion, disseisin, discontinu- ance, and other species of wrong whatso- ever, whereby he that hath right to the freehold is kept out of possession. But, as contradistinguished from these, it is only such a detainer of the freehold from him that hath the right of property, but never had any possession under that right, as falls not within any of those terms. Jacob. DEFORCEOR, or DEFORCIANT. A person chargeable with deforcement. DEFORCIARE. To withhold lands or tenements from the rightful owner. This was said to be a technical word. for which no substitute could be re- ceived. Co. Litt. 331 b. DEFRAUD. To cheat ; to deprive of some interest, right, or property by a deceitful device; to perpetrate a fraud. See Fraud. DEGRADATION. 1. An ecclesiastical censure, whereby a clergyman is divested of his holy orders. There are two sorts of degrading by the canon law : one summary, by word only; the other solemn, by strip- ping the party degraded of those ornaments and rights which are the ensigns of his order or degree. (Seld. Titles, 787.) The canonists have distinguished between a deposition and a degradation; the latter being used as a greater punishment than the other. 2. There is likewise a degradation of a lord or a knight, &c., at common law, when they are attainted of treason ; or by act of parlia- ment. Jacob. Degradation, as applied to a peer, must not be confounded with disqualification by bankruptcy, under Stat. 84 & 85 Vict. ch. 50. (See 2 St^h. Com. 612; Robson, Bkcy.) Mozhy ^ W. DEGREE. 1. In the law of descent, degree is the relation between one person and the next in the line of descent, or one remove in the chain of relationship. See Descent. 2. Used with respect to crimes, de- gree signifies different grades of guilt and punishment attributed to the same offence, committed under different cir- cumstances. Thus murder, originally defined as corbprising unlawful and in- tentional killing, is divided in some juris- dictions into the first and second degrees, according as the killing is by poison, lying in wait, &c., indicating long and deliberate premeditation, or is upon a sudden provocation and determination. 3. In English law, degree signifies the civil condition of a person; his rank or position, as whether he is yeoman, gentleman, &c. Under Stat. 1 Hen. V. ch. 5, degree and estate mean the same thing, — defendant's rank in life. State v. Bishop, 15 Me. 122. DEHORS. From beyond or outside; foreign to or unconnected with. A word of French origin, used in much the same way as the Latin aliunde, q. v. DEI GRATIA. By the grace of God. An expression used in the titles of sovereigns, denoting a claim of au- thority derived from divine right. It was anciently a part of the titles of DEL 359 DELEGATA inferior magistrates and other officers, civil and ecclesiastical, but was after- wards considered a prerogative of royalty. DEL CREDERE. Of trust; of credit. A term used to denote the agree- ment of au agent or factor, who, in consideration of an additional premium or commission where he sells goods of his principal on credit, guarantees to him the solvency of the pm-chaser. The additional compensation given is called a del credere commission, and the factor who receives it a del credere factor. The contract is in its nature that of a surety or guarantor ; the del credere factor be- coming liable only in case of the default of the purchaser. DELECTUS PERSONS. Choice of person. A term applied to express the right of choice of one or more per- sons to the exclusion of others, which exists in those relations where mutual confidence and trust are necessary to the carrying out of the purpose for which the relation was formed. Thus, under the contract of partnership, no one can be admitted to a firm as a partner who has not been selected or agreed to by all the existing partners ; even the heir of a deceased partner cannot insist on being admitted to the firm of which his ances- tor was a member. A similar principle applies to the relation of principal and agent, attorney and client, and other personal relations, and to contracts for personal services, where the skill or other personal qualifications of the par- ticular individual is a requisite to the performance of the contract; and even, to a limited extent, to the relation of landlord and tenant, the landlord being supposed to have selected the tenant or granted him the lease in view of his per- sonal qualifications. Delegata potestas non potest dele- gari. A delegated authority cannot be redelegated. An agent or other person to whom any authority, duty, or office is delegated, cannot lawfully appoint an- other to perform his functions, or de- volve his duty or office upon another, unless expressly authorized so to dele- gate his authority. This maxim rests to a great extent upon the principle that authority is conferred on considerations personal to the one to whom it is dele- gated, and that such delectus personce would be entirely defeated if the person so chosen on account of his own particu- lar qualifications were entitled to trans- fer the authority so delegated to another person of his own selection. The maxim applies equally whether the delegated power has been conferred by public or private authority, the reason above given having application to both classes. As to powers delegated by private authority, it is a familiar rule that an agent cannot la\\'fully nominate or appoint another to perform the subject-matter of his agency. Thus a notice to quit, given by an agent of an agent, is not sufficient, without a recognition by the principal. So in the case of a broker, who is presumed to be employed from the opinion of his per- sonal skill and integrity entertained by his principal, and who cannot therefore, without authority from his principal, transfer a consignment made to him, in his character of broker, to another broker for sale. And an arbitrator cannot lawfully devolve the duty of deciding the questions submitted to him to an- other, unless expressly authorized so to do ; he must apply his own mind to the matters submitted. And, with respect to persons clothed with judicial func- tions by public authority, they must themselves in person perform the duties intrusted to them, except as they may be expressly authorized by law to dele- gate their powers. The ordinary rule is, that although a ministerial officer may ap- point a deputy, a judicial officer cannot. Lord Campbell, in Eegina v. Dulwich College, 17 Q. B. 600, remarks, "The crown cannot enable a man to appoint magistrates." Even the power of a ministerial officer — as a sheriff — to appoint a deputy extends to his minis- terial powers only; he cannot delegate to his substitute any power or duty ex- pressly conferred on him personally, and therefore within the reason of the maxim. The power to redelegate delegated functions may, however, in some circum- stances, and to a limited extent, be im- plied, where not expressly given; as from a recognized usage of trade or customary method of performing the acts authorized. DELEGATE 360 DELIVERY DELEGATE, v. To authorize; to commit power to another ; to intrust to an agent or representative. Delegate, n. -. a person to whom authority or power has been committed, to be exercised in a representative capacity; particularly, one elected to represent others in an oc- casional or temporary assembly, as a nominating convention. Under the government of the United States, the people of an organized terri- tory send a delegate to congress, who has a seat, and joins in debate, but has no vote. DELEGATION. 1. At comnion law, the transfer of authority by one person to another; the act of making or com- missioning a delegate. Also, popularly, several delegates acting together are called a delegation. 2. In the civil law, delegation signifies a substitution of one debtor for another; a species of novation, by which a debtor procures another person to be liable in his stead. It is called perfect or imper- fect delegation, according as the original creditor is released or not. Delegation is where a debtor obtains a release from his creditor by the substitution and acceptance of another who obliges him- self to the creditor. Adams v. Powers, 48 Miss. 451. DELICTUM. Guilt ; fault. 1. A crime; an offence; a violation of law, of any nature. 2. A wrong; a tort, as distinguished from a contract; a private wrong, as distinguished from a crime or public offence. The word is most frequently used in this sense ; as in the phrase ex delicto (q. v.), employed to distinguish obligations and causes of action arising out of tort from those arising out of contract, designated as ex contractu. 3. Fault; blame; guilt. The word is sometimes used in this milder sense. Thus, parties who are equally in fault are said to be in pari delicto. DELIVERY. The transfer of the body or substance of a thing; the sur- render of physical control. Delivery of a deed is considered one of the essential requisites of the validity and operation of the instrument. It is termed an absolute delivery, when the deed is surrendered to the grantee or one who receives it for him, with uncon- ditional intention that it shall take ef- fect; it is a conditional delivery, or a de- livery as an escrow, when the deed is placed in the custody of a person who will deliver it to the grantee upon his performance of some condition, or upon the happening of some contingent event. Delivery, in the same general sense, is applied to other instruments than deeds, though such use is of less importance. Deeds take precedence according to the time of their delivery, except where registration laws give them precedence according to their time of registration. The delivery may be effected by merely handing the deed to the grantee or his agent; or by saying, "I deliver this writing as my act and deed," or similar words ; or by any understood token that the grantor intentionally surrenders the instrument to take effect. Delivery of movable chattel property is of importance in performance of con- tracts of sale; in the dealings between consignor and carrier, and between carrier and consignee; in executing gifts, &c. Here actual or i-eal deliv- ery is the manual transfer of the com- modity sold to the recipient. Construc- tive or symbolical delivery may be made with equal effect, at least as between buyer and seller, by the transfer of some article which is a symbol or evidence of ownership; such as the delivery of the key of a warehouse containing the goods sold, or of the bill of lading of goods at sea, or of the bill of sale of a vessel at sea. Delivery of a deed is held to be performed by the person who executes the deed plac- ing his finger on the seal, and saying, " I de- liver this as my act and deed." A deed takes effect only from this tradition or de- livery. Brown. Delivery signifies, as a popular word, mere tradition; in legal phraseology, the final, absolute transfer to the grantee of a complete legal instrument, sealed by the frantor, covenantor, or obUgor. Black o. hreve, 13 N. J. Eq. 455. A delivery of a deed is its tradition from the maker to the person to whom it is made, or to some person for his use. Kirk «. Tur- ner, 1 Deu. Eq. 14. Any act or words evincing the grantor's intention to deliver a deed is, presumptively, a delivery. Mallett v. Page, 8 Ind. 364. To constitute delivery of a deed, there must he an Intention to part with control over the deed as its owner. Berry v. An- derson, 22 Ind. 36. DELIVERY 361 DEMAND The law does not prescribe any particular form of words or actions as necessary to consummate a delivery of a deed. Any thijig done by the grantor, from which it is apparent that a delivery is thereby intended, either by words or acts, or by both com- bined, is sufficient. Somers v. Pumphrey, 24 fnd. 231. In respect to sales, delivery is the trans- ferring the thing sold into the power and possession of the buyer. The civilians all consider that it ia essential that the thing shall be under the control and in the power of the purchaser. If the effects be mov- able, the thing passes by actually giving it into the care of the buyer. If it is kept in a building, there may be a delivery of the key. If the thing cannot be transported at the time of sale, the consent of parties will be sufficient. Lambeth v. Wells, 12 Rob. 51. To constitute a delivery to a common carrier, the latter must have accepted the goods in his character as such a carrier, and assumed the exclusive custody and control over them ; and the consignor must have at the same time parted with and entirely sur- rendered his possession and control over the goods. Beed, &c. v. Phil., &c. E. R., 3 Eoust. 176. As between carrier and consignee, deliv- ery implies mutual acts of the two. Land- ing the property on the wharf, at the end of the voyage, is not a good delivery, without, at the least, giving notice to the consignee. Ostrauder v. Brown, 15 Johns. 39 ; Price ;;. Powell, 3 N. Y. 322. When goods are delivered to a common carrier, to be by him delivered to a second one, for further transportation, the common- law liability remains on the former until the delivery has been made to the latter. Hence, the section in the charter of the Michigan Central Eailroad Company, pro- viding that the company will not be respon- sible for goods on deposit in any of their depots, awaiting delivery, does not include goods waiting for transpartatioti, but only such as have reached their final destina- tion. Eailroad Co. v. Manuf . Co., 16 Wall. 319. Merely placing goods in such a position that a person (in this case the receiving clerk in a common carrier's office) can take them, but without calling his attention to them, is not a delivery . O'Bannon v. South- ern Exp. Co., 51 Ala. 481. See also U. S. Dig. tit. Carriers ; Express Companies; Eailroad Companies. Where the subject-matter to be given is capable of delivery, a delivery, actual or symbolical, is essential to constitute a valid gift by parol ; and this must be a transfer of possession, or a giving of means of ob- taining possession. Noble v. Smith, 2 Johns. 52. And see 3 Abb. N. Y. Dig. tit. Gift, 12- The delivery need not be to the donee in person. A delivery to a third person to hold for the donee is sufficient. Hunter v. Hunter, 19 Barh. 831 ; Coutant ». Schuyler, I Paige, 316. DEMAND, V. To ask performance or payment of somethmg as of right; to claim vrhat is due. Demand, n.: the act of asking performance or payment as of right, or of claiming what is due; also, the right or title in virtue of which delivery of property, payment of money, or performance of an act may be claimed ; as in the expressions, holding a demand against one," a receipt in full of all de- mands. Demand is a calling upon a man for any thing due. There are two manner of de- mands : the one in deed, the other in law. In deed, as in a prmcipe quod reddat, there is an express demand. Every entry on land, distress for rent, taking of goods, &c., which may be done without words, is a demand in law. It is also said there are three sorts of demands ; one in writing, without speaking, and that is in every prmcipe ; one without writing, being a verbal demand of the per- son who is to do or perform the thing ; and another made without either word or writ- ing, which is a demand in law, in cases of entries on lands, &c. Jacob, Demand is the largest word in law, ex- cept claim {Co. Litt. 291 b; 8 Rep. 299), and embraces all sorts of actions, rights, and titles, conditions before or after breach, executions, appeals, rents of all kinds, cov- enants, annuities, contracts, recognizances, statutes, commons, &c. A release of all demands to date bars an action for damages accruing after the date, from a nuisance previously erected. Vedder v. Vedder, 1 Den. 257. Demand is more comprehensive in import than " debt " or " duty." Sands v. Codwise, 4 Johns. 536 ; Matter of Denny, 2 Hill, 220. Demand, or claim, is properly used in reference to a cause of action. Saddles- vene v. Arms, 32 How. Pr. 280. A submission of all demands to arbitra- tion includes questions concerning real as well as personal property. Marks v. Mar- riott, 1 Ld. Raym. 114. A judgment is a contract of record, and is a demand, within the meaning of an in- strument embracing all demands of one party against another. Henry a. Henry, II /ncf. 236. Damages " in full satisfaction of all de- mands," by reason of the pulling down certain buildings, means in full satisfaction of all loss or injury sustained in conse- quence of such pulling down. Mayor, &o. of N. Y. V. Lord, 17 Wend. 285 ; 18 Id. 126. A charter made the stockholders liable for all debts contracted by the company, and declared that any person having a " de- mand " against it might recover from any stockholder, providing, however, that the stockholder should not be liable to pay, in all, more than the amount of stock held by DEMANDANT 362 DEMUR him when the " debt " accrued. Held, that the word demand, in its connection, was to he construed as importing a demand arising upon contract, and that a stockholder was not liable for damages arising from a neg- lect of the corporation to repair a bridge. Heacock v. Sherman, 14 Wend. 58. DEMANDANT. The designation of the plaintiff in a real action. DEMENTIA. Unsoundness of mind. The condition of a person who is de- prived of his mental faculties, or whose mental powers are impaired; as distin- guished from a madman or lunatic, or a person wholly insane. Dementia denotes an impaired state of the mental powers, a feebleness of mind caused by disease, and not accompanied by delusion or uncontrollable impulse, without defining the degree of incapacity. Demen- tia may exist without complete prostration of the mental powers. Dennett v. Dennett, 44 N. H. 531. DEMESNE. Originally, one's own. Demesnes or demesne lands in the feu- dal law were lands unqualifiedly one's own; those which the tenant held in his own absolute right, as distinguished from lands held upon service, from another; also, lands which the lord retained for his own use, for the supply of his own table, &c., as distinguished from those which he owned, but were in occupancy of a tenant. Other forms of the word are demeine, demaine ; domain, domaine, domainium, &c. See Jacob. Demesne lands were those parts of a man- or which the lord kept to himself, as neces- sary for his own use. Of such lands one por- tion was retained in the actual occupation of the lord for the purposes of his family, another portion seems to have been held in villenage, and the residue, being unculti- vated, served for public roads and for com- mon of pasture to the lord and tenants. Hok. Son assault demesne. His own assault. A defence in an action of trespass for violence to the person, that plaintiff provoked it by his own assault upon defendant. DEMISE. 1. Death. Thus the phrase demise of king or queen de- notes the decease of the reigning sover- eign, and consequent transfer of the property and power of the crown to a successor. 2. A species of conveyance of lands; usually a lease, or conveyance of an estate for years. Demise is applied to an estate either in fee, for term of life, or years, but most com- monly the latter ; it is used in writs for any estate. (2 Inst, 483.) The word demist, in a lease for years, implies a warranty to tlie lessee and his assignee ; and upon this word action of covenant lies against the heir of the lessor, if he oust the lessee ; it binds the executors of the lessor, who has fee-simple or fee-tail, where any lessee is evicted, and the executor liath assets ; but not the lessor for life's executors,' without express words, that the lessee shall hold his whole terni. {Duer,261; Jenk. Cent. 3b.) Jacob. Demise was formerly applicable to the grant of a freehold estate, but it is not now so applied. ( Cowd ; 1 Steph. Com. 509, 512 ; FawceU L. f T. 229.) Mozley ^ W. Demise is synonymous with lease, or let, except that demise ex vi termini implies a covenant for title, and also a covenant for quiet enjoyment, whereas lease, or let, im- plies neither of these covenants. Brown. Demise does not necessarily import a sealed instrument. Magee v. Eisher, 8 Ala. 320. The use of demise in a lease for years implies a covenant of power in the lessor to give the lease. Grannis v. Clark, 8 Cow. 36 ; see Sumner v. Williams, 8 Mass. 201. It imports a covenant of good right and title to make the lease, and for quiet enjoy- ment. Crouch V. Fowle, 9 N. H. 219. At least during the lifetime of lessor. Folts V. Huntley, 7 Wend. 210. But not so in a lease which contains a stipulation that nothing therein contained shall be construed to imply such a covenant. Maeder v. Carondelet, 26 Mo. 112. The words " grant " and " demise " in a lease for years create an implied warranty of title and a covenant for quiet enjoyment. Stott V. Rutherford, 92 U. S. 107. Wliere there is an express covenant for quiet enjoyment, the words " grant, demise, and lease," do not imply a general war- ranty. Tooker v. Grotenkemper, 1 Cin. 88. Demise, as used in section 4 of the act of 1801, for incorporation of religious societies, means a lease for years, in consideration of rent. The technical meaning is a lease for a term of years. Voorhees v. Presbyterian Church of Amsterdam, 5 How. Pr. 58, 71. Demise and redemise. The name of a species of conveyance where there are mutual leases made from one person to another on each side, of the same land, or something out of it. It was used upon the grant of a rent-charge, &e. DEMOCRACY. That form of gov- ernment in which the people possess and directly exercise the political power. DEMUR. To object to the sufficiency in point of law of a cause of action, de- fence, or pleading; to interpose a de- murrer, J. V. DEMURRAGE 863 DEMURRER DEMURRAGE. A pecuniary com- pensation recoverable for a wrongful de- lay of a vessel, whereby her owners are for a time deprived of her use or freights; also, sometimes, but less fre- quently, the delay itself. It is usually stipulated in charter-par- ties and bills of lading that a certain number of days, called running or work- ing days, shall be allowed for receiving or discharging the cargo, and that the freighter may detain the vessel for a farther specified time, or as long as he pleases, on payment of so much per diem for such overtime. This payment is demurrage. Another form in which it arises is in collision causes, where a ves- sel injured by a collision is delayed for repairs; an allowance for losing the use of her during the time may be de- creed in addition to the reparation of the injury. It is usual in charter-parties to insert an agreement that a specified number of days shall be allowed for loading and unloading, or for one of those operations, and that it shall be lawful for the freighter to detain the vessel for these purposes a further spe- cified time, on payment of a daily sum. (Abb. Shipp. 308.) A contract to the same effect is often inserted in the bill of lading, where goods are sent in a general ship. {Holt's N. P. 95.) This delay and the pay- ment agreed upon are called demurrage. Cross V. Beard, 26 N. Y. 85. Demurrage is only an extended freight or reward to the vessel, in compensation for the earnings she is improperly caused to lose. Every improper detention of a vessel may be considered a demurrage, and com- pensation under that name be obtained for it. (2 Hagq. Adm. 317.) Donaldson v. Mc- Dowell, 1 Holmes, 290. Demurrage is the allowance or compensa- tion due to the master or owners of a ship, by the freighter, for the time the ves- sel may have been detained beyond the time specified or implied in the contract of affreightment or the charter-party. Bdl. DEMURRER. The name applied at law, in both civil and criminal cases, in equity practice, and under the codes of reformed procedure, to a pleading the substantial nature of which is that it admits the facts of the previous pleading in the cause to exist as alleged, and questions their sufficiency or validity as a cause of action or defence. Demurrers are general, when the suffi- ciency of the pleading demurred to is dis- puted only in general terms. They are special, when particular defects are pointed out; this is necessary with re- spect to some grounds of objection. Demurrer is a pause or stop put to any action*, upon a point of difficulty which must be determined by the court before any further proceedings can be had there- in. For if the point of controversy con- sists in law, it is determined by the court. A demurrer, therefore, is an issue upon matter of law. It confesses the facts to be true, as stated by the opposite party ; but denies that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made out a law- ful excuse. Jacob. In English practice at law, demurrers, before the common-law procedure act, 1852, were either general or special ; but that act abolished special demurrers, leaving in ex- istence only the general demurrer, and this allowed ordy where the pleading is bad in substance. Argumentativeness, generality, inconsistency, &c., must be objected to by motion. Brovm. Demurrer, in an action at law, signifies a legal objection taken by either party to the other's pleading ; but in eciuity the word is applied only to the objection taken by the defendant to the bill or information. Moz- ley ^ W. A demurrer is an admission of the fact, submitting the law arising on that fact to the court Exp. Vermilyea, 6 Cow. 555. Although the rule of pleading is that a demurrer admits facts well pleaded, for the purpose of determining their legal suffi- ciency, yet it cannot be used as an instru- ment of evidence on an issue of fact. It presents only an issue of law to the court ; the jury have no concern with it. Pease ». Phelps, 10 Conn. 61 ; Havens v. Hartford, &c. E. E. Co., 28 Id. 69. Demurrer-book. See Book. Demurrer to evidence. The name applied in the common-law practice to an objection by a party to an action at law, to the evidence produced by the opposite party on the trial, that, admit- ting it to be true in fact, it is in law in- sufficient to maintain or overthrow the issue, referring 'to the court to deter- mine what the law is upon the facts as shown in evidence. Stephen considers it to be analogous to a demurrer in pleading, the party from whom it comes declaring that he will not proceed, be- cause the evidence ofiered on the other side is not sufficient to maintain the issue. Upon joinder in demurrer, the jury are to be discharged without ren- dering a verdict, and the demurrer is heard and determined by the court. DENARIUS 364 DEPART This) proceeding has fallen into disuse in modern practice, the same object be- ing accomplished in other ways. A demurrer to the evidence may arise where a record or other matter is produced in evidence, concerning the legal conse- quences of which there is a doubt in law ; in which case the adverse party may, if he pleases, demur to the whole evidence ; and such demurrer admits the truth of every fact which has been alleged, but denies the sufficiency of them all, in point of law, to maintain or overthrow the issue. Jacob. A party who introduces no evidence upon a trial before a jury, may, as a mat- ter of right, demur to the evidence of his adversary ; the more especially if the evi- dence demurred to is not loose, indefinite, or circumstantial. Such a demurrer admits the truth of the facts proved, together with the conclusions fairly inferable therefrom, and asks the judgment of the court as to their legal effect. Pharr v. Bachelor, 3 Ala. 237. Denarius Dei. Grod's penny; earn- est-money. A small coin formerly given and received by the parties to a con- tract, which served to bind the bargain between them. The piece of money so used was called denarius Dei, because it was given to God; that is, to the church or the poor. Any sum of money paid as earnest-money has been so termed. DENIZEN. Is used in England to signify a person who, being an alien by birth, has obtained letters-patent mak- ing him an English subject. The king may denizenize but not naturalize a man; the latter requiring the consent of parliament, as under the naturaliza- tion act, 1870 (33 & 34 Vict. ch. 14). A denizen holds a position midway be- tween an alien and a natural-born or naturalized subject, being able to take lands by purchase or devise (which an alien could not until 1870 do), but not able to take lands by descent (which a natural-born or naturalized subject may do). Denizenize signifies to constitute one a denizen; and denizenation, the act of so doing. The American editor of Wharton's Diet, says that denizens are not known in the United States, and cites Walker's Am. Law ; but Bouvier says this condi- tion has been created by statute in South Carolina. The word denizen is used in the common law in a double sense. It sometimes means a natural-born subject, and sometimes a person who, being an alien, has been deni- zenized by letters-patent of the crown. ( Co. Litt. 129 a; Id. 8 a; Com. Dig. Alien, D; Bam. 433.) Levy v. M'Cartee, 6 Pet. 101, 116, note. DEODAND. Any personal chattel which is the immediate occasion of the death of any reasonable creature, was formerly forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner ; but this rule of law was abolished in 1846 by Stat. 9 & 10 Vict ch. 62. 2 Steph. Com. 551, 552. DEPART. 1. To go away; to leave; to start for some other place. Depart- ure: the act of leaving or going away. In this sense, the words are of frequent use in commercial law and transactions ; as when arrival and departure of vessels is mentioned. Under Neb. Code Civ. Pro. § 20, provid- ing that if, after a cause of action accrues, the debtor depart from the state, &c., the time of his absence shall not be computed as part of the period within which action must be brought, — the mere temporary absence of a debtor from the state, when such debtor has a usual place, of residence therein where service of summons can be had upon him, does not suspend the statute of limitations. The words, depart from the state, do not mean a mere temporary ab- sence from the state while the debtor's usual place of residence continues there, but they are intended to apply to such an absence from the state as entirely suspends the power of the plaintiff to commence his action. Blodgett v. Utley, 4 Neb. 25. A statute forbidding a vessel to " depart from part," without permit, is not violated by her leaving the wharf with intent to go to sea, while she yet remains within the port. If seized before she gets out of the port, the offence is not consummated The Active V. United States, 7 Cranch, 100, 1 Paine, 247. 2. In pleading, depart is sometimes used, and departure frequently, when a party abandons the particular right of action or defence set up by a former pleading, and, in a subsequent pleading in the same action, sets up a different one. Thus the replication, if it does not adhere to the right declared upon, but seeks to sustain the action upon new grounds, is said to involve a departure. It is not allowable. A departure, in pleading, is when a party quits or departs from the case or defence which he has first made, and has recourse to another. Kimberlin v. Carter, 49 Ind. Ill ; Allen v. Watson, 16 Johns. 206 ; White V. Joy, 13 N. Y. 83, 89. DEPARTMENT 365 DEPOSE In pleading, a departure is a confession of an answer, without allegations of facts sufficient to avoid it. McAroy v. Wright, 26 Ind. 22. DEPARTMENT. 1. Civil divisions of a state or country are sometimes styled departments. In this sense, the ■word does not materially differ from dis- trict; one term is employed for the di- visions created for one purpose, the other for those having another object. Thus there has been a division of the United States into districts for the judicial organization, and another divi- sion into districts for election of repre- sentatives, and a division into depart- ments for military purposes. The divi- sion of France into departments, nearly corresponding to our counties, is a familiar instance of this use of the word. 2. The executive business of the gov- ernment of the United States is, under a permission rather than a mandate of the constitution, distributed to seven executive departments; besides which the office charged with the superinten- dence of the agricultural interests is styled the department of agriculture, though not of equal gi-ade with the executive departments. The department of state is charged with the conduct of foreign aSairs, cor- respondence and business with and through public ministers and consuls; custody and publication of the acts of congress. The secretary of state is the head of this department. The department of war is charged with the conduct of all military affairs ; the general management of the army, and of its supplies and pay; the regulation of military stations; and, incidentally, the observations and signals conveniently made at military posts. The secretary of war is its head. The department of the treasury has charge of the fiscal affairs of the gov- ernment, the collection of its revenue, the keeping its accounts, and the pay- ment of its debts. The secretary of the treasury is its head. The department of justice, which has been knowii by that name only since 1870, being an expansion of the office of the attorney-general, has charge of the law business in which the government is concerned; the prosecution and defence of suits in which the government is a party, or has an interest; the regulation of the business and doings of district at- torneys and marshals, and matters ger- mane to these. The attorney-general is the head. The post-office department, at the head of which is the postmaster-general, has charge of all postal affairs. The department of the navy has charge and control of the navy, and of naval affairs, and of explorations and observations by vessels of the United States. The secretai-y of the navy is the head. The department of the interior has charge of the census, the public lands, including mines, the Indians, pensions, and bounty lands, patents for inventions, custody and distribution of certain pub- lications, and education. The secretary of the interior is the head. All these departments have places of business established by law at Washing- ton. The head of each department is a member of the cabinet (5. v.), and also has the appointment of subordinate clerks and employes in his depart- ment. The heads of departments and the principal assistants are appointed by the president, with the advice and con- sent of the senate. DEPENDENT. Contracts or cov- enants are called dependent when the party upon whom they devolve is not under obligation to perform them until the other party has performed some con- nected stipulation or covenant resting upon him. DEPONENT. One who deposes ; one who testifies under oath; and usually one who testifies in writing. See De- pose. S'OCtJC^iC^J^^l The word depone, from which is derived deponent, has relation to the mode in which the oath is administered (by the witness placing his hand upon the book of the holy evangelists), and not as to whether the tes- timony is delivered orally or ■ reduced to writing. Deponent is included in the term witness, but witness is more general. Bliss V. Shuman, 47 Me. 248. DEPOSE. Signifies, originally, to give testimony under sanction of an oath, without implying that it is given in writing. It is sometimes used in this DEPOSIT 366 DEPOSIT general sense as equivalent to testify, but importing more definitely an oath. But more often, in modern usage, it is employed in the sense of to give testi- mony, which is officially written down for futiire use or reliance as written evidence. See Deponent ; Deposition. DEPOSIT. A species of bailment; being that contract in which one person places movable property in the charge of another upon his engagement to keep it safely, and return it upon demand. Most of the early definitions express that the engagement of the bailee, in deposit, is gratuitous, Jones Bailm. 36, 117; Story Bailm. § 41; but this does not seem to be an invariable ele- ment in the word, as ordinarily used. Deposit is also employed to designate the thing which is the subject of the bailment. Depositor: the person who makes a deposit. Depositary: the party who re- ceives it. In respect to the case of money de- posited with a banker, the convenience of commerce, and the very objects of such dealings, require that the banker should be at liberty to use the identical money deposited, and to discharge his obliga- tion to return, by repayment of the same sum in any equivalent coin or bills. A deposit made upon this understanding is termed, in authorities using the lan- guage of the civil law, an irregular de- posit. In American usage, it is famil- iarly called a deposit; but, if special oc- casion arises for discriminating, the pay- ing in of money to a banker, upon the ordinary engagement that he may use and repay in kind, is called a general deposit; while the delivery of coin, bills, or valuables, upon the strict understand- ing that the identical things are to be kept and returned, is termed a special deposit. The act of intrusting money to a bank is called a deposit in a bank ; and the amount of the money deposited is also called the deposit. 3 Steph. Com. 81-86. Also, deposit is a species of bailment, by which a person intrusts another with a chattel to keep safely, without reward. In this sense, the Latin form of the word, depositum, is more frequently adopted. Story Bailm. ;• Mozley ^ W. Where the very silver or gold deposited is to he restored, the transaction is a special or pure deposit. Where the party is to re- store, not the identical coin, but only an equivalent on demand, the- transaction is a loan, or mutuum or irregular deposit. State V. Clark, 4 Ind. 315. A deposit is general, unless the depositor makes it special, or deposits it expressly in some particular capacity. Keene v. Collier, 1 Mete, (ky.) 415; Brahm v. Adkins, 77 III. 263. Deposits made with bankers may he di- vided into two classes : those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter ; and that kind peculiar to bank- ing business, in which the depositor, for his own convenience, parts with the title to his money, and loans it to the banker, and the latter, in consideration of the loan of the money, and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand. Money col- lected by one bank for another, placed by the collecting bank with the bulk of its ordinary banking funds, and credited to the transmitting bank in account, becomes the money of the former. It is a deposit of the latter dass. Marine Bank v. Fulton Bank, 2 Wall. 252. Deposit, in respect to dealings of banks, includes not only a bailment of money to be returned in the same identical specie, but also all that class of contracts where money is placed in the hands of bankers to be re- turned, in other money, on call. Curtis ». Leavitt, 15 N. Y. 9, 166, 168. That engaging to transmit a draft does not involve a deposit, see United States u. City Bank, 6 McLean, 130. That the certificate of a bank that ®4,000 has been deposited in such bank implies that it has been deposited in cash, See People V. Contracting Board, 27 N. Y. 378. Where P delivered a sum of money to the firm of S G & H, which they cred- ited to P on their books, &c., for which they gave him a written receipt, stating that the money was to P's credit on books of the firm at six per cent interest, it was held that, under the attendant circum- stances, this transaction constituted a deposit, and not a loan ; and the relative rights of the parties in respect to a demand were the same as arise in the case of deposits with banks. Payne v. Gardmer, 29 N. Y. 146, 39 Barb. 634. Presenting bills of the E bank to that bank for payment, and leaving them to be counted and paid, though they were re- tained by the bank and mingled with its cir- culation, without payment, was held, under the circumstances, not a deposit of the amount with the bank, and not enough to entitle the owner of the bills to share the security of depositors. Catliu v. Savings Bank, 7 Conn. 487. In Louisiana, the former distinction be- tween a perfect and iinperfect deposit is abrogated by Civ. Code, art. 2934, which recognizes as the only real deposit a thing to DEPOSITION 367 DEPOT be restored identically. But parties may, by their contracts or course of dealing, cre- ate irregular deposits. Bloodworth v. Ja- cobs, 2 La. Ann. 26. The difference between a deposit and a mandate is, that while the object of a de- posit is that the thing bailed be kept, sim- ply, the object of a mandate is that the thing may be transported from point to point, or that sometliing be done about it. Montgomery v. Evans, 8 6a. 178. Deposit of title-deeds. In England, the title-deeds of an estate are often de- posited as a security for the repayment of money advanced. This operates as an equitable mortgage. DEPOSITION. 1. The principal use of this term in jurisprudence is to sig- nify the testimony of a witness when given in answer to interrogatories pro- pounded by a person authorized for the purpose, and officially taken down in writing. See Depose; Deponent. Depositions are customarily taken in the following oases: In courts of chancery, the usual mode of taking evidence has been for the giaster to take the depositions of the witnesses, and these were laid before the chancellor at the hearing. But in some jurisdictions oral testimony is heard by the chancellor. As to the practice in the United States circuit courts in this respect, see Blease v. Garlington, 92 U. S. 1. The laws of congress for the courts of the United States (Rev. Stat. §§ 863- 875), and the laws of most of the States for the state courts, provide for taking depositions, to be used in civil causes, of witnesses whose personal attendance cannot, by reason of non-residence, sick- ness, infirmity, &c., be secured upon the trial. These depositions may be, in the cases prescribed by the statute ap- plicable, taken and used against the will of the adverse party; but must be taken in strict accordance with the directions of the statute ; and, in general, can only be used after proof is made at the trial that personal attendance of the witness cannot then be secured. In criminal cases, depositions are taken by examining magistrates as a foundation of a committal of the ac- cused to await indictment. But they are not, in general, competent to be read upon the trial of the indictment, unless upon behalf or by consent of the ac- cused. Constitutional provisions have given a person upon trial for crime the right to be confronted with the wit- nesses against him. Bouvier says that some of the states have enacted laws enabling the accused to introduce depo- sitions of witnesses whose attendance he cannot secure. In England, the depo- sitions taken before a committing magis- trate have been allowed in case the deponent should die before the trial, or be too ill to attend, to be used in evi- dence, subject to certain restrictions mentioned in Stat. 11 & 12 Vict. ch. 42. A deposition is evidence given by a wit- ness under interrogatories, oral or written, and usually written down by an official per- son. In its generic sense, it embraces all written evidence verified by oath, and in- cludes affidavits ; but, in legal language, a distinction is maintained between deposi- tions and affidavits. Stimpson v. Brooks, 3 Blatehf. 456. Deposition is sometimes used as synony- mous with " affidavit " or " oath." But, in its proper technical sense, it is limited to the written testimony of a witness given in the course of a judicial proceeding, either at law or in equity. It should be construed in this restricted sense in a definition of per- jury, given in an act for the punishment of that crime. To give, when so used, the more comprehensive sense, would extend the crime of perjury even to official oaths, which ought not to be done by construction. State V. Dayton, 23 N. J. L. 49. 2. Depose and deposition, when spoken of a sovereign, signify, respectively, to deprive him of his authority and dignity, or overthrow his power; and the act of so doing. They import a revolutionary, unlawful deprivation. 3. These words are used in ecclesiasti- cal law to signify depriving a clergyman of his orders, done in the course of ecclesi- astical discipline, and by authority and regular proceedings. Ayl. Parerg. 206. Deprivation (g. v.) seems the more com- mon word, and more extended in sig- nification. DEPOT. Seldom occurs in Ameri-^ can law-books, except in the sense of a building or establishment where goods,'^ merchandise, or supplies may be depos- ited to await transportation, or, after transportation, to await delivery to a consignee or consumer ; usually, a build- ing incident to a raih-oad. In the !French law, depot is the depositum DEPRIVATION 368 DERELICT of Roman and the deposit of English law. Tt is of two kinds, being either d€p6t simply so called, and which may be either voluntary or necessary ; or s€questre, which is a deposit made either under an agreement of the par- ties, and to abide the event of pending liti- gation regarding it, or by virtue of the direction of the court or a judge, pending litigation regarding it. Brown, Depot, applied to a railroad, does not necessarily mean a single building. Pitts- burg, &c. K. K. Co. V. Chicago E. B. Co., 24 Ohio St. 219. In a contract for the transportation of military supplies, "posts, depots, and sta- tions " are to be taken in their military sense. Caldwell's Case, 19 Watt. 264. DEPRIVATION. A depriving or tak- ing away ; as when a bishop, parson, vicar, &c., is deposed from his preferment. De- privation is of two sorts ; deprivatio a benefi- cio, whereby a man is deprived of his pro- motion or benefice ; and deprivatio ab officio is that whereby a man is deprived of his orders, which is also called deposition or degradation, and is commonly for some heinous crime meriting death, and per- formed by the bishop in a solemn manner. (Cowd; 1 Bl. Com. 382, 393; 2 Steph. Com. 673,693.) Mozleii^rW. DEPRIVED. The meaning of deprived, as used in N. Y. Const, art. 1, § 6, relative to compensation for property taken by emi- nent domain, is the same as the word taken, in the same section ; and when property is not seized and directly appropriated to pub- lic use, though it be subjected, in the hands of tlie owner, to greater burdens than be- fore, it is not taken contrary to section 6. Grant v. Courier, 24 Barh. 232. DEPUTY. One -who acts officially by appointment in place of another; one who exercises the office of another man in his place; the substitute of an officer. A deputy differs from an assignee in that an assignee has an interest in the office it- self, and does all things in his own name, for whom his grantor shall not answer, ex- cept in special cases ; but a deputy has not any interest in the office, and is only the shadow of the officer in whose name he acts. And there is a distinction in doing an act by an agent and by a deputy. An agent can only bind his principal when he does the act in the name of the principal. But a deputy may do the act and sign his own name, and it binds his principal; for a deputy has, in law, the whole power of his principal. Wharim. Two kinds of deputies of a sheriff are well known. 1. A general deputy, or under- sheriff, who, by virtue of his appointment, has authority to execute all the ordinary duties of the office of sheriff. He executes process without special power from the sheriff, and may even delegate authority in the name of the sheriff for its execution to a special deputy. 2. A special deputy, who is an officer ^ro hac vice; to execute a par- ticular writ on some certain occasion. Ho acts under a specific, not general, appoint- ment and authority. Allen v. Smith, 12 N. .T. L. 159, 162. Deputy-sheriff and under-sheriff are used as synonymous terms ; and while the sheriff is in the execution of his office, the under- sheriff has no more power than any other general deputy. Tillotson u. Cheetham, 2 Johns. 63. DERAIGN. Seems to mean, literally, to confound and disorder, or to turn out of course, or displace ; as deraignment or departure out of religion, in Stat. 31 Hen. VIII. eh. 6. In the common law, the word is used generally in the sense of to prove ; viz., to deraign a right, deraign the war- ranty, &c. ( Glanv. lib. 2, c. 6 ; Fitz. N. B. 146.) Perhaps this word deraign, and the word deraignment, derived from it, may be used in the sense of to prove and a proving, by disproving of what is asserted in opposi- tion to truth and fact. Jacob. DERELICT. The term derelict is applied to maritime property entirely deserted or abandoned, under the com- pulsion of some extreme peril. The re- sults of such an abandonment are im- portant to be considered in two aspects. 1. Such an abandonment does not whoUj divest the owner of his property. This is the result of a voluntaj'y abandonment by the owner with his free consent; but not of a relinquishment as force, neces- sity, or danger compels. Thus, a ves- sel wrecked, or goods thrown overboard to lighten a ship, are recoverable on pay- ment or tender of salvage. Although little prospect of recovering goods thrown overboard to lighten a vessel could ex-, ist, yet the right of recovery is not nec- essarily lost ; but, on proof of property, the goods are recoverable, on payment or tender of salvage, if either driven on shore or taken afloat. Warder v. La Belle Creole, 1 Pet. Adm. 31. 2. The fact of the property being found derelict materially strengthens, in most cases, the claim of the salvor to the favorable consideration of the court in determining the amount to be awarded him. In determining whether, under the circumstances of a particular case, a vessel is to be deemed derelict, it must appear that she was absolutely aban- doned by those in charge of her. Tyson w. Pryor, 1 Gall. 183; Rowe v. The Brig , 1 Mas. 372; Evans ». The Charles, 1 Newb. 329; Montgomery v. The T. P. Leathers, Id. 421,425; Mesner ». Suf- DERELICT 369 DESCENDANT folk Bank, 1 Law Rep. 249 ; The Atta- oapas, 3 Ware, 65; Cromwell v. The Island City, 1 Cliff. 221. If she was not abandoned finally, she is not to be deemed derelict; but, if a final abandon- ment is shown, whether the desertion arose from accident or necessity, or was voluntary, is immaterial. In one ' instance, a steamboat, while proceeding to her destination, was so injured by a collision with a schooner, sailing in an opposite direction, as to be deemed in immediate danger of sinking ; and, under that apprehension, was left by all on board. The passengers and part of the crew went on board the schooner; but the master, with other officers and the residue of the crew, remained in small boats about the wreck, employed in sav- ing articles found floating; and, after a brief interval, judging it safe so to do, again went on board for the purpose of saving, and did save baggage of passen- gers, money, and other property to a large amount. It was held that the steamboat, under these circumstances, and at the time when the alleged services of the libellants were performed, was not derelict. Mesner v. Suffolk Bank, 1 Mo. Law Rep. 249. In a like case, where a steamboat on the Mississippi, being on fire, was surrendered by her master and crew to the master and crew of the sailing-vessel, under the conviction that nothing could be efEectually done for her safety without the aid of the latter vessel, a similar decision was made. Montgomery v. The T. P. Leath- ers, Newb. 421. But where the master and crew left their vessel in a sinking condition, and took to the long-boat, and were picked up by another vessel while yet in sight of the wreck, the vessel and cargo thus left were considered as dere- lict. The Boston, 1 Sumn. 328. And a vessel may be held derelict where the master, and all others on board, had deserted her in peril, notwithstand- ing the master had expressed an in- tention of endeavoring to send relief. The Laura, 14 Wall. 336. The fact that human beings continue on board seems not to prevent the conclusion that the property is derelict, if they are not persons legally considered as continuing in the responsible charge of the property ; VOL I. 24 for a vessel with slaves on board, but without any white person, has been held derelict. Flinn v. The Leander, Bee Adm. 260. But where a part of the crew of a vessel at sea were dead, and all the rest physically and mentally in- capable of providing for their own safety, this was said to be not what is known as ' ' derelict, ' ' but ' ' quasi derelict. ' ' Stur- tevant v. The George Nicholaus, 1 Newb. 449, 452. Derelict is a term applied to any thing that has been forsaken or left, or wilfully cast away. Derelict lands left by the sea, suddenly, belong to the king, but when the sea shrinks back so slowly that the gain is by little and little, i. e., by small and imper- ceptible degrees, it goes to the owner of the land adjoining. Jacob, Derelict is any thing thrown away or abandoned with the intention of quitting the ownership thereof. Brown. The word dereliction is also used for the retiring of the sea, whereby land is gained. A finding of a jury that property was derelict might not import that the title of the owner had been divested. But "dere- lict and abandoned " imports that the owner had relinquished all intention to recover the property ; and, if so, it might belong to the first finder reducing it to possession. Wy- man v. Hurlburt, 1 Ohio, 81. DESCENDANT. A person who is descended from another; any one who ' proceeds from the body of another, how- ever remotely, is a descendant of the latter. The word is the converse or op- posite of ascendant, rather than of an- cestor, taking all these words in the legal, technical sense. Descendants, used in a will made by the head of a family, means all those who pro- ceeded from his body. Crossly v. Clarke, 1 Amb. 396. As used in a will, descendants means only lineal heirs, in the absence of clear in- dications of an intention on the part of the testator to enlarge its meaning. Baker v. Baker, 8 Gray, 101, 119. Descendants includes every person de- scended from the stock referred to ; is co- extensive with "issue ; " does not embrace as much as " relations." Barstow v. Good- win, 2 Bradf. 41.S. In general, the term descendants is broad enough to let in grandchildren with children; but, under a devise to such of testator's brothers and sisters as should sur- vive him, and the descendants of such as should then be dead, equally ; adding that the descendants of any deceased brother or sister are to take the share that would have belonged to the parent, — the descend- ants take per stirpes, not per capita. lb. DESCENT 370 DESCENT A sister's child is not a descendant of the testator. Armstrong v. Moran, 1 Bradf. 314. Brothers and sisters cannot take under the term descendants. That word does not mean next of kin, or heirs-at-law generally, as these phrases comprehend persons in the ascending as well as in the descending line, and collaterals ; but it means the issue of the body of the person named, of every degree, such as children, grandchildren, and great-grandchildren. Hamlin v. Osgood, 1 Redf. 409. Descendant, as used in 3 N. Y. Rev. Stat. (5th ed. ) 146, § 4, relative to devises, extends to all issue of the testator, however remote, but does not embrace collateral relatives. Van Beuren «. Dash, 30 N. Y. 393. s.-p. as to Georgia statutes. Bryan v. Walton, 20 Ga. 480 ; Walker v. Walker, 25 Id. 420. Descendants must not be construed in one portion of a statute of descents, as in that of Rhode Island of 1857, § 1, to mean descendants nearest in degree, unless con- sistent with other portions, such as section 5, giving the right of representation. Daboll V. Field, 9 R. I. 266, 289. DESCENT. The act of descending or passing downwards. In law, tlie transmission of an estate by inheri- tance, usually, but not necessarily, in the descending line. Whether an inher- itance passes upwards or downwards in the line of consanguinity, upon the death of its possessor, such transmission is technically termed descent. The words ascend and ascent, although more accu- rate, are but seldom applied to the for- mer case; and the term ascendant, as the converse of descendant, is used rather to express the relation of per- sons than the course of transmission of estates. This use of the word descent resulted from the ancient canon of the common law, derived from the feudal law, prohibiting lineal succession in the ascending line. This restriction has long since been removed throughout the United States, and was abolished in England by Stat. 3 & 4 Wm. IV. oh. 106, which declares that every lineal ancestor shall be capable of being heir to any of his issue. That statute defines descent as the title to inherit land by reason of consanguinity, as well -where the heir shall be an ancestor or collateral relation as where he shall be a child or other issue. And such is the sense in ■which the word is now understood in English and American law. The rules of descent are applicable where a person on the death of an an- cestor acquires an estate by right of rep- resentation as heir at law; or, in other words, where the law casts the title oil the recipient immediately on the death of the ancestor, without looking to any instrument as a medium of transfer. The term is not appropriate where es- tates for life or years are involved. Descent is frequently used to distin- guish the vesting of title in any one by mere operation of law, from purchase, which may be either devise or grant. In the former case, the person is said to take by descent, or as heir; while a grantee or devisee is said to take by purchase, or as purchaser. The rules governing the course of descent in England remained unchanged for a long period prior to the statute 3 & 4 Wm. IV. , already referred to. They were expressed in a number of canons, said to have been framed by Lord Chief Justice Hale; and the term canons of descent is frequently applied both to them and the more modern rules. The characteristic features of the English system are the preference of male to female heirs ; the preference of the eld- est male issue to the exclusion of the others, or the doctrine of primogeniture; and, where there is no male issue, the treating all the female issue together as the heir, they taking an estate in copar- cenary. The American law of descents depends upon the statutes of the several states, which, differing greatly in minor details, yet are gesnerally the same as to the more important rules and those which are of frequent application. They have departed widely from the English canons in giving the succession of estates to all legitimate children in equal shares without distinction, and disregarding all considerations of primogeniture ; follow- ing in this the doctrine of the civil law. As to descent to collaterals, no common principle seems to have been followed. In regard to the right of representation, the rule more usually adopted by the state statutes of descents is that lineal descendants in an equal degree from the common ancestor share equally per capi- ta ; but under some statutes each lineal branch of descendants takes only the portion which their parent would have DESCENT 371 DESCRIPTIO taken had he heen living, the division being per stirpes, and not per capita. The following stages in the growth of the present English law of descents may be indicated : Fee-simple estates were originally con- fined to the issue or lineal descendants of the ancestor ; By the reign of Henry II., collateral descendants were admitted to the succes- sion upon the failure of lineals ; By the time of Henry IIL, primogeniture, i.e. descent to the eldest son in exclusion of the others, was established; also the doc- trine of representation, whereby the issue of the eldest son who was dead stood in his place, to the exclusion of the other sons ; In the year 1833, the lineal ancestors were, as such, rendered capable of being heirs, and the half-blood of the purchaser became admissible to succeed as heir ; and In the year 1859, the widow of the pur- chaser became admissible to succeed as heir. Broum. The canons which at present regulate the descent of land in England are the fol- lowing : First. The inheritance is to descend to the lineal descendants of the purchaser in infinitum ; Second. And to the male issue in pref- erence to females ; Third. And to the eldest male issue in exclusion of the others ; but if there are no male issue, then to the female issue alto- gether as coparceners ; Fourth. Lineal descendants in infinitum are to represent their ancestor ; Fifth. Failing lineal descendants of the purchaser, the inheritance is to go to the nearest lineal ancestor, the father succeed- ing before the brother or sister of the pur- chaser, and every more remote ancestor succeeding before his issue other than any less remote ancestor or ancestors, and his or their issue. Sixth. In the application of the fifth canon, the succession is to be according to the following order : The father and all male paternal ances- tors and their descendants in infinitum ; All the female paternal ancestors and their heirs. The mother and all male maternal ances- tors, and her and their descendants in infi- nitum; and All the female maternal ancestors and their heirs. Seventh. The half-blood of the pur- chaser shall inherit, — Where the common ancestor is a male, next after a kinsman in the same degree of the whole blood, and the issue of such kins- man in infinitum ; and Where the common ancestor is a female, next after that female . Eighth. In the application of the sixth canon, — In the admission of female paternal an- cestors, the mother of the more remote male paternal ancestor and her heirs are to be preferred to the mother of the less remote and her heirs ; and In the admission of female maternal an- cestors, the mother of the more remote male maternal ancestor and her heirs are to be preferred to the mother of the less remote one and her heirs. Ninth. Failing the discovery of an heir after the application of all the preceding eight canons, the land is to descend to the heir of the person last entitled, although he was not the purchaser thereof; and such heirs will, of course, have to be ascertained by the renewed application of the preced- ing eight canons, starting only from a dif- ferent point of departure. Broum. Descents are of two sorts ; lineal, as from father or grandfather to son or grand- son; or collateral, as from brother to brother, or cousin to cousin. They are also distinguished into mediate and imme- diate descents, But these terms are used in different senses. A descent may be said to be a mediate or immediate descent of the estate or right ; or it may be said to be mediate or immediate, in regard to the me- diateness or immediateness of the pedigree or consanguinity. Thus, a descent from the grandfather, who dies in possession, to the grandchild, the father being then dead ; or from the uncle to the nephew, the brother being dead, — is in the former sense, in law, immediate descent, although the one is collateral and the other lineal ; for the heir is in the per, and not in the per and cui. On the other hand, with reference to the line of pedigree or consanguinity, a descent is often said to be immediate, when the ancestor from whom the party derives his blood is immediate, and without any intervening link or degrees ; and mediate, when the kindred is derived from him mediarUe altera, another ancestor intervening between ttiem. Thus a descent in lineals from father to son is in this sense immediate; but a de- scent from grandfather to grandson, the father being dead, or from uncle to nephew, the brother being dead, is deemed mediate ; the father and the brother being, in these latter cases, the medium deferens, as it is called, of the descent or consanguinity. Levy V. McCartee, 6 Pet. 102. DESCRIPTIO PERSONS. Descrip- tion of the person. Words following the name of a person, in the body or signa- ture of a person, are often construed as operating only to describe the person in- tended, and not to qualify his obligations or liabilities . For example , the publisher of a newspaper had adopted the style of " The Churchman " as his business designation, and gave PI authority as his agent to bind him under that name. This being the course of business, H made a note, in the usual form, "I DESERTION 372 DESPOT promise to pay," and signed it H , agent of " The Churchman." He very probably intended to bind the proprietor of " The Churchman," and not himself. But the court held that the proprietor was not liable : the note was the individ- ual note of H. The words " agent of ' The Churchman ' " were only operative as a descriptio personce : they served to show which of the various persons named H was the signer of the note ; but did not restrict his liability as maker. De Witt V. Walton, 9 N. Y. 571; s. p. Pentz V. Stanton, 10 Wend. 271; Rath- bon n. Budlong, 15 Johns. 1. The same principle often applies when such de- scriptions as executor, administrator, assignee, trustee, are appended to the name of a party; they are treated as identifying the individual, not as show- ing that he acts only in a representative capacity. If this is intended, it must be explicitly stated. See Eegnor i'. Webb, 36 Hoto. Pr. 353. But the ap- plication of the rule depends very much upon the character and tenor of the in- strument, and the circumstances under which it was made. DESERTION. The abandonment of a relation or service in which one owes duties ; the quitting, wilfully and with- out right, one's duties; the withdrawal, unexcused, from the obligations of some condition or status. The term is chiefly used of soldiers or sailors who quit service in the army or navy, this being a punishable offence; of sailors in the merchant service, who leave the ship, this being a cause of for- feiture of wages; and of husbands or wives, or parents, who abandon their spouses or children. By the laws of many of the states, prolonged desertion between husband and wife is ground of divorce. In respect to the military service, there is a distinction between desertion and sim- ple absence without leave. In order to constitute desertion, there must be both an absence and an intention not to return to the service. Hanson v. South Scituate, 115 Mass. 336. Desertion, in the sense of the maritime law, is a quitting of the sKfp and her ser- vice, not only without leave, and against the duty of the party, but lyith an intent not again to return to the ship's duty. If a seaman quits the ship without leave, or in disobedience of orders, but with an in- tent to return to duty, however blamable his conduct may be, it is not the offence of desertion. Cloutmau v. Tunison, 2 Sumn. 373. By desertion, in the maritime law, is meant, not a mere unauthorized absence from the ship without leave, but an unau- thorized absence from the ship, with an in- tention not to return to her service, or, as it is often expressed, animo turn revertmdi; that is, with an intention to desert. Coffin v. Jenkins, 3 Story, 108, Absence of a wife from her husband, by his consent, does not constitute desertion within a statute declaring desertion a ground of divorce. In legal plu'aseology, the word is uniformly used to denote a wilful abandonmient of an employment or duty, in violation of a legal or moral obligation. A soldier is said to desert his post, a sailor his ship, an apprentice his master, when they depart from the service to which they are bound, without permission or contrary to orders. The word implies ' a separation which is not with the assent of the person deserted. Lea v. Lea, 8 AUen, 418. Desertion, as used in the Massachusetts divorce law, means the wilful denial of companionship, with the intentional and permanent abandonment of all matrimonial intercourse, against the libellant's consent. The intentional abandonment by a husband, against his wife's consent, for five consecu- tive years of all matrimonial intercourse and companionship, and his denial to her of the protection of his home, will sustain her libel on the ground of desertion, al- though during the five years he has regu- larly contributed towards supporting his wife and children. Magrath v. Magrath, 103 Mass. 577. Eefusal of sexual intercourse for five years consecutively, although not justified by considerations of health, is not desertion. Southwick v. Southwick, 97 Mass. 327. DESIGN. When used as a term of art, design means the giving of a visible form to the conceptions of the mind, or, in other words, to the invention. Binns v. Wood- ruff, 4 Wash. C. Ct. 48, 52. Design, as used in an indictment for hav- ing in possession materials and plates for the making of counterfeit bank-notes, may point out the purpose or object for which such materials and plates were originated, but not any criminal intent on the part of the defendant so to use them. Common- wealth V. Morse, 2 Mass. 128. DESIRE. A testator devised land to some of his children, charged with a pay- ment, and added that he " desired " the de- visees to let his other children have it at the same price. It was held that this gave the latter a right to purchase. The word desire, in a will, raises a trust, where the objects of that desire are specified. Van Dyck !). Van Beuren, 1 Cai. 84. DESPOT. In its original sense, dea- DESTINATION 373 DETINUE pot means governor, master, or ruler; and its early employment was as a dig- nity or title, as the despots of Sparta, created by the Emperor Alexius. But, from the oppression and tyranny prac- tised by many who acquired the posi- tion and power of despot, it has come to be used as a generic term for one who possesses and abuses unlimited power; a tyrant. A despotism is that form of government in which the whole political power is vested in one person ; an auto- cracy; except that despotism carries a stronger suggestion of abuse of author- ity than does autocracy. One might, perhaps, speak of a benevolent or patri- otic autocrat, but could scarcely prefix those adjectives to despot. DESTINATION. The phrases " port of destination " and " port of discliarge " are not equivalent. To make the port of desti- nation the port of discharge, either some cargo must be unladen, or there must be an actual termination of the voyage there. United States ». Barker, 5 Mass. 404. DESTROY. The legal meaning of de- stroy, as used in the act of congress punish- ing with death a party destroying vessels, is to unfit the vessel for service, beyond the hope of recovery by ordinary means. United States D.Johns, 1 Wash. 363, 4 Dall. 412. DCtxU^ - i'HA.'C^afi'fo. DETAINER. I. The act, usually a wrong, of keeping a person against his wUl, or of withholding possession of real or personal property from a person en- titled to it. In this sense, it is substan- tially equivalent to detention, but has a more technical use. Forcible entry and detainer is the name descriptive of the wrong or offence of entering upon lands and excluding the rightful owner. 2. In English practice, detainer was the name of a species of writ or process, prescribed by Stat. 2 Wm. IV. ch. 39, § 1, but superseded by 1 & 2 "Vict, ch. 110, §§ 1, 2, for commencement of a personal action against a person al- ready under imprisonment. It author- ized the sheriff who had a defendant al- ready in custody, at the suit of some other plaintiff, to detain him, notwith- standing any discharge from that suit, until the new suit should be raised. Wharton. DETERMINE. 1. To ascertain or decide; as to determine the compensa- tion to be awarded for property taken, or to determine a question or controversy. Determination : the act of deciding; also, sometimes, the decision itself, as when one speaks of determinations re- viewable upon appeal. 2. To bring to an end; to close; to terminate; as to determine a contract. Also, to come to an end; to stop; as in the expression, an estate for life will de- termine on a certain death. Determi- nation : the ending or close of some priv- ilege, proceeding, or right. Determina- ble: that which maybe ended or closed. DETINET. He detains. A techni- cal word, anciently used in the declara- tion in actions of debt in certain cases where the action was brought by or against a party other than the person who originally gave the credit or in- curred the obligation, as an action by or against an executor for a debt due to or from the testator. The term has given a name to the mode of declaring in such cases, the declaration being said to be in the detinet. In other actions of debt, the declaration is in the debet and detinet, q. v. The terai is also applied to the action of replevin, where it is founded on a continued detention. See Replevin. DETINUE. The name of one of the common-law forms of action, which lay for the recovery of the possessia»-rf a personaT chattel wrongfully detained bv the defendant from the^plaintifB,jwhere theT;aklng^wasTawful. The gist of the jgt iorTistlfe'wr ongfuI-det&SingJnot the original taking ; and the defen dant mus t have acquired the_ _passession by lawfal means, as by bailment, finding, &c. ^ To~niamtain tiie action, the plaintiff must have a right to immediate posses- sion, although it is not necessary that he should ever have had actual posses- sion. The chattels must be such as are capable of being distinguished from aU others, and must be described with cer- tainty in the declaration, so that a judg- ment for a return in specie may be en- forced. The judgment is in the alterna- tive, — that the plaintifi recover the goods, or, if the goods cannot be had, for their value, and his damages. This form of action was in a gi-eat measure superseded, even in the common-law practice, by the action of trover, the lat- DETINUIT 374 DEVIATION ter being found to be a less technical and more practical remedy; and, in states where the common-law practice has been abolished, the action of replev- in, or some similar remiedy, has been sub- stituted. In some of the states, while detinue continued in use, it was used as the appropriate remedy in every case of unlawful detention of personal property, without regard to the manner in which possession of it was acquired by the de- fendant. The action of detinue is defined in the old books as a remedy founded upon the delivery of goods by the owner to another to keep, who afterwards refuses to redeliver them to the bailor ; and it is said that, to authorize the maintenance of the action, it is necessary that the defendant should have come lawfully into the possession of the chattel, either by delivery to him or by finding it. In fact, it was once understood to be the law that detinue does not lie where the property had been tortiously taken. But it is, upon principle, very un- important in what manner the defendant's possession commenced, since the gist of the action is the wrongful detainer, and not the original taking. It is only incumbent upon the plaintiff to prove property in himself, and possession in the defendant. At pres- ent, the action of detinue is proper in every case where the owner prefers recovering the specific property to damages for its con- version, and no regard is had to the man- ner in which the defendant acquired the possession. Pierce v. Hill, 9Port. (Ala.) 151. DETINUIT. He detained. A tech- nical word, used in declarations in re- plevin in he same manner as the pres- ent tense, detinet, q. v. DEVASTAVIT. He has wasted. 1. The technical name of waste by an executor or administrator. 2. Also, if plaintifE, in an action against an executor or administrator, has obtained judgment, the usual execu- tion runs de bonis testatoris ; but if the sheriff returns to such a writ nulla bona testatoris nee propria, the plaintifE may, forthwith, upon this return, sue out an execution against the property or person of the executor or administrator, in as full amanneras in an action against him, sued in his own right. Such a return is called a devastavit. Brown. 3. An entry or suggestion, on record, of waste by an executor or administra^ tor, made on the part of a plaintiff, as the foundation of a new writ, or of an action of debt. DEVENERUNT. The name of an obsolete English writ, formerly directed to the escheator on the death of the heir of the king's tenant under age and in custody, commanding the escheator that, by the oaths of good and lawful men, he inquire what lands and tenements, by the death of the tenant, came to the king. Termes de la Ley; Cowel; Dyer, 360. DEVEST. To deprive ; to take away ; to withdraw. Usually spoken of an au- thority, power, property, or title; as the estate is devested. Devest is opposite to invest. As to in- vest signifies to deliver the possession of any thing to another, so to devest signifieth to take it away. Jacob. It is sometimes written dtvest ; but devest has the support of the best authority. Bur- rill. DEVIATION. In insurance law, means a departure from the course of the voyage contemplated by a policy, or, more technically, such a departure as impairs the insurer's liability. Originally, of course, the word was used in the first-mentioned, vernacular sense of a departure from the intended line of the voyage, irrespective of its effect upon the policy. But it seems to have acquired the restricted, technical meaning of such a departure as impairs the insurance. The language of the cases very often is, that such and such a departure is or is not a deviation ; mean- ing, it does or does not discharge under- writers. A deviation is a voluntary departure from or delay in the usual and regular course of a voyage insured, without neces- sity or reasonable cause; this discharges the insurer, from the time of the deviation. Coffin V. Newburypbrt Ins. Co., 9 Mass. 436. A deviation is not merely the going out of the track or course usually taken ; but it is a departure from the express or implied terms of the contract. Within this rule, unjustifiable delay constitutes a deviation. Warder v. La Belle Creole, 1 Pet. Adm. 31. In determining whether a diversion from the direct course of a voyage is such a de- viation as in law vacates a policy, the mo- tives, end, and consequences of the act enter into the true criterion of judgment. Thus if delay in port be insisted upon as amount- ing to a deviation, the question should be put to the jury whether such delay was in the exercise of good faith and sound dis- cretion, or was by necessity or for reason- able cause. Foster v. Jackson, &c. Ins. Co., 1 Edm. Sel. Cos. 290. As liberty to touch at a particular port, reserved in a policy of insurance, does not imply liberty to remain there for the pur- DEVISAVIT 375 DICTATE pose of trading, trading at such port (in- volving delay) may amount to a deviation. Maryland Ins. Co. v. Le Roy, 7 Crunch, 26 ; United States v. The Paul Sherman, Pet. C. Ct. 98. Where liberty is given to touch at M, a stoppage at M, and discharge of cargo there, which produces no delay and no increase of risk, is not a deviation. Hughes v. Union Ins. Co., 3 Wheat. 159; s. p. Hughes v. Union Ins. Co., 8 Id. 294. For a vessel to turn aside from her course, or delay, for the purpose of relieving an- other vessel, is not a deviation which avoids a policy, if the object is to save human life. To do so with the object of saving property merely, is a deviation. The Henry Ewbank, 1 Sumn. 400; Bond v. The Cora, 2 Wash. C. Ct. 80, 2 Pet. -Adm. 361 ; The George Nicholaus, 1 Newb. 449 ; Crocker v. Jackson, Sprague, 141, 10 Mo. Law Rep. 70. Where a voyage was described in a policy as at and from A to B or C, to go to both Is a deviation, unless sustained by usage gen- erally known. Bulkley v. Protection Ins. Co., 2 Paine, 82. If, after sailing, a vessel stops at a port for more men, it is a deviation, unless such a general usage is shown that the par- ties must have intended a reference to it. Folsom V. Mercantile Mutual Marine Ins. Co., 38 Me. 414. For a steamboat to take a brig in tow, there being nothing in the policy expressly authorizing it, is a deviation. Natchez Ins. Co. V. Stanton, 10 Miss. 340. If the termini of a voyage are preserved, it is a deviation to stop at an intermediate point, though such deviation be decided on before sailing. Henshaw v. Marine Ins. Co., 2 Cai. 274. It is not a deviation for a vessel to take measures to repel a hostile attack ; nor, if the insured vessel captures the attacking one, is it a deviation for her to take pos- session and man the prize, if her own crew is not injuriously weakened. Haven v. Holland, 2 Mas. 230. Pursuing a vessel that has been pirati- cally taken by its crew is a deviation. Hood V. Nesbitt, 1 Yeates, 114. Devisavit vel non. Did he devise or not ? Did he make a will or not ? The technical name of an issue directed by a court of equity to be tried in a court of lavr, upon some matter of fact alleged as an objection to the validity of a will; such as fraud, or undue in- fluence, or incapacity on the part of the testator. DEVISE, V. To dispose of real property by ■wiU. Devise, n.. a dispo- sition^ of real property by will; also, sometimes, the clause of the will making, a gift of real property. Devisor: a tes- tator, in respect to gifts of real property. Devisee: one to whom real property is given by wiU. Devise should be restricted to the dis- posal of real property. It is sometimes used of gifts of other kinds of property; but this use is unadvisable, unless, per- haps, when both real and personal prop- erty are necessarily embraced. To speak of a residuary devise seems not rendered inadmissible by the fact that the estate includes personalty. Compare Be- quest; Legacy. Devise means a gift of lands, &c., by a last will and testament. A devise is, in construction of law, no deed, but an instru- ment by which lands are conveyed. To devise is to give by will. The word was, formerly, particularly applied to bequests of land, but is now generally used for the gift of any legacies whatever. Jacob. Devise is a bequest by a man of his lands and goods by his last will and testament in writing. {Termes de la Ley; Coiod.) At present, devise is principally used with refer- ence to lauded property, and bequeath and bequest with reference to personalty. Mo^ hySrW. Devise properly relates to the disposal of real property, not of personal. Dickerman V. Abrahams, 21 Barb. 551, 561. Devise is properly applied to gifts of real property by will, but may be extended to embrace personal property, to execute the intention of the testator. McCorkle i'. Sherrill, 6 [red. Eq. 17-3. The words "devise," "legacy," and "bequest " may be applied indifferently to real or personal property, if such appears by the context of a will to have been the testator's intention. Ladd v. Harvey, 21 N. H. 614. Devisee, accompanying a bequest of personalty, will be held to mean legatee. Wright V. Trustees of Meth. Epis. Ch., Boffm. 202, 212. A devise of lands is in all cases consid- ered a specific devise ; whether made by a specific or general description, to a particu- lar devisee, or to the residuary legatee. Wyman v. Brigden, 4 Mass. 151. A devise of all the remainder of the tes- tator's estate, after paying the legacies and .deducting specific devises, is not specific. Hays V. Jackson, 9 Mass. 149; Stutton v. Cole, 3 Pick. 232. DICTATE. In the provision of the Louisiana civil code, that a will may be dictated by the testator, the term dictate is properly defined : to pronounce, word by word, what is designed to be written by an- other. But the meaning of the provision is that the testator must express his intention orally, not by signs, but by words; and that these words must be uttered spontane- ously, and not upon interrogation or sug- gestion. The unqualified proposition that the slightest variation from the words of DICTUM 376 DIES the testator is prohibited, cannot be adopted. Hamilton o. Hamilton, 6 Mart. (La.) u. s. 143. There is a manifest difference between dictating a will, and causing it to be written. To dictate, used in a technical sense, means to pronounce orally what is destined to be written at the same time by another. But when the code, after providing in what cases there must be a dictation, goes on stating that it will suffice, if, upon comply- ing with some additional formality, the tes- tator causes the instrument to be written by another person, it is obvious that the purpose is to dispense with the technical dictation. Prendergrast v. Preiidergrast, 16 La. Ann. 219. DICTUM. A saying; a remark. 1. A mere assertion or voluntary statement, which a party is not bound to make. 2. An opinion expressed by a judge, in deciding a cause or question, either aside from the point to be decided, and hence said to be extra-judicial, or obiter dicta, or given without deliberation, as a hasty opinion at nisi prius. Dicta are not considered binding upon courts as precedents, and have only the authority due to the opinion of the individual judgfe by whom they are announced. Some difference of opinion has existed as to the rule of distinction between questions necessarily involved and de- cided in a cause, and those which are merely collateral, and therefore to be regarded as mere dicta. According to the more rigid rule, an ex- pression of opinion, however deliberate, upon a question, however fully argued, if not essential to the disposition that was made of the case, may be regarded as a dictum ; but it is, on the other hand, urged that it is difScult to see why, in a philo- sophical point of view, the opinion of the court is not as persuasive on all the points which were so involved in the cause that it was the duty of counsel to argue them, and which were deliberately passed over by the court, as if the decision had hung upon but one point. [1 Abb. N.Y.Dig.iv.) Bouvier. Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determinations of the judge himself. OKter dicta are such opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects. Rotoback V. Germania Fire Ins. Co., 62 A^. Y. 47, 58. The fact that a decision might have been put upon a different ground, existing in the case, does not place it in the category of a dictum. Clark v. Thomas, 4 Heisk. 419. DIE. Policies of life-insurance often contain a provision exempting the com- pany from liability in case the assured dies by his own hand. The cases are generally to the effect that this means voluntary suicide, Moore v. Connecti- cut Mut. Life Ins. Co., 1 Am. L. T. Rep. N. 8. 319; that if a person brings his life to a close by poison, this, though not involving any violent use of his own , hands, is included, Hartman v. Key- stone Ins. Co., 21 Pa. St. 466; and that, upon the other hand, although he literally dies by his own hand, yet if the act was committed while the subject was insane to such degree as to prevent him from forming a rational judgment respecting his act, the company is not released, Terry v. Life Ins. Co., 1 DUl. 403; Eastabrook i". Union, &c. Ins. Co., 54 Me. 224 ; Breasted ». Farmers' Loan Co., 4 Hill, 73, 8 JV. Y. 299; though, if he retained suflScient reason to under- stand the nature of his act, it is dis- charged, Dean v. American, &c. Ins. Co., A: Allen, 96. DIES. A day. This Latin word oc- curs in many phrases frequently used, the more important of which are these: Diem clausit eztremum. He closed his last day; i. e., he died. The name of English writs issued to enforce cer- tain rights of the crown on the death of its tenant or debtor. Dies amoria. A day of favor; a time allowed by favor or indulgence. A de- lay granted by the court to a party, as a matter of indulgence. Dies a quo. The day from which. The day from which a transaction or computation of a period of time begins ; the commencement of it; the conclusion being termed the dies ad quern, — the day to which. Dies communes in banco. Com- mon days in court. A term applied in English 'practice to stated days of ap- pearance in the courts ; called also com- mon return days. Dies datns. A day given. Dies Dominicus. The Lord's day. Sunday. Dies Dominicus non est juridicus. The Lord's day is not a juridical day. Sunday is not a day for judicial proceed- ings. No judicial act is, in general, DIES 377 DIGGING performed on Sunday; and any ordinary legal proceeding attempted to be taken on that day would be null and void. Such acts are the iasue, service, and re- turn of process, except in criminal cases; the service of notices, pleadings, and . other papers; holding court for the trial of a cause ; assessment of damages upon a writ of inquiry, &c. But where a cause has been tried and submitted to a jury before Sunday, their verdict may generally be returned and received on that day. The maxim does not, in terms, apply to private acts or contracts on Sunday; but many statutory provisibns prohibit the carrying on of ordinary labor or business on Sunday, and, as a conse- quence, render invalid any act or contract prohibited. See Sabbath; Sunday. In the computation of time, where the last day of the time within which any act is required to be done falls upon Sunday, that day is excluded as dies non, and the succeeding day becomes the last day; but, otherwise, an interven- ing Sunday is included in the computa- tion. This rule applies in determining the time for the performance of contracts, except instruments upon which days of grace are allowed; with regard to which, if the last day of grace falls on Sunday, payment must be made on the preceding Saturday. Dies fasti. Auspicious days. Days on which, in the Roman law, courts might be held and judicial and other business transacted; the days deemed auspicious for such purposes being desig- nated as dies fasti in the public calendars of each year by the Pontifex Maximus. Dies gratiae. A day of grace. Used in old English practice to designate a day allowed to a party by grace, courtesy, or favor. See Dibs amokis and Quarto DIE POST. Dies juridicus. A juridical day; a court day. A day for judicial proceed- ings or legal purposes ; a day on which courts may properly transact business. Dies nefasti. Unauspicious days. Days which, in the Roman law, were considered unauspicious, and upon which the courts were closed and no ju- dicial business was transacted. See Dibs fasti. Dies non juridicus. A non-juridical day. A day on which no judicial pro- ceedings can be taken ; such as Sunday, or any legal holiday. Such days are frequently termed, by abbreviation, dies non. Dies utiles. Useful days; available days. Applied, in the Roman law, to the days upon which an heir, having knowledge that an inheritance was open to him, might apply therefor to the judge. /O ^f^'^^ - /4^/ll li-^ DIGEST.' A compilation presenting the substance of the contents of many books in one, under an arrangement (usually alphabetic) especially intended to facilitate reference. In the use of the word in jurispru- dence, a digest differs from an abridg- ment in that it reproduces the rules of the decisions by mere quotation or ex- tract, while abridgment is usually ap- plied to works involving somewhat more consolidation and originality. It differs from a concordance or index, in that it purports to give the matter in an avail- able form, while they merely indicate where the matters mentioned may be found. It differs fi-om a treatise, in that it presents merely the adjudications of the courts, or precepts of the statutes, as they are found in the original books; while a treatise sets forth the law as the author has learned or understands it, for- tified by references to books as author- ities, but given upon his learning and responsibility. But the words are not strictly discriminated in actual use. When reference is made to the Digest, the Pandects of Justinian are intended, they being the authoritative Compilation of the civil law. Bouvier, The Digest of the Emperor Justinian (otherwise called the Pandects) was a col- lection of extracts from the most eminent Roman jurists. In a.d. 530, Justinian au- thorized Tribonian, with the aid of sixteen commissioners, to prepare such a collection, and allowed ten years for the work. It was, however, completed in three years, and published under the title of Digest, or Pandects, on the 16th of December, 533, and declared to have the force of law from the 30th of that month. (1 Bl. Com. 81 ; 1 Steph. Com. 63 ; Mack. Rom. Law, 22 ; Sand. Just. Introd. § 30.) Mozley ^ W. DIGGING. In a contract for a street improvementf has been held synonymous with excavating. It is not confined to removal of earth, as distinguished from DIGNITARY 378 DIOCESE rock. Sherman v. Mayor, &c. of N. Y., 1 N. Y. 316. DIGNITARY. In the canon or ec- clesiastical law, seems to be used in a general sense, as including all those ec- clesiastics whose positions give them au- thority or pre-eminence over others; and also, in a stricter sense, as denoting par- ticular classes. Jacob says, it embraces a bishop, dean, archdeacon, prebendary, &c., but that there are simple prebendaries, with- out cure or jurisdiction, which are not dignitaries. Brande says, it now in- cludes all the prebendaries and canons of the church. Shipley defines it as one of the quatuor personce of a cathedi-al, viz., dean, precentor, chancellor, and treasurer.. Staunton (citing Stephens on Book of Common Prayer, 54, note) says, it includes a bishop and some other ecclesiastical officers holding a peculiar rank and dignity in the church; that the title, though popularly used for any one filling a high ecclesiastical office, is, in strictness, only applicable to bishops, deans, archdeacons, and some below them who hold jurisdiction. DIGNITY. In English law, signifies a species of incorporeal hereditament, in which a man may have a property or es- tate. Dignities were originally annexed to the possession of certain estates in land, and were usually created by a grant of those estates. They have, in modern times, become little more than personal distinctions, but have continued to be classed under the head of real property; and, as having relation to land, in theory, at least, may be entailed, or limited in remainder. In the United States, dignities, in the legal sense of the term, do not exist. DILAPIDATION. In its technical use, dilapidation is the name for ecclesias- tical waste committed by the incumbent of a living ; which is either voluntary, by pul- ling down ; or permissive, by suffering the chancel, parsonage-house, and other build- ings thereunto belonging, to decay. (3 Bl. Com. 91, 92; 3 StepA. Com. 313, 408.) Mozl^ ^ W. DILATORY PLEA, or DEFENCE. A ground of defence, or a plea, which does not purport to meet the merits of the plaintiff's claim, but only resists his recovery by interposing a temporary objection, or question in the propriety of the remedy to which he has resorted, is called dilatory. A dilatory plea is a plea by a defendant in an action, founded on some matter of fact not connected with the merits of the case, but such as may exist without impeach- ing the right of action itself. It is either: A plea to the jurisdiction, show- ing that, by reason of some matter there- in stated, the case is not within the ju- risdiction of the court. A plea of suspen- sion, showing some matter of temporary incapacity to proceed with the suit. A plea in abatement, showing some matter for abating the action. The effect of it, if es- tablished, is, that it defeats the particular action, leaving the plaintiff at liberty to commence another in a better form. It is opposed to at peremptory plea, otherwise called a plea in bar, which is founded on some matter tending to impeach the right of action. (3 Bl. Com. 301, 302 ; 3 Steph. Com. 502, 503.) Mozley %■ W. DILIGENCE. Careful attention and effort to accomplish a purpose or perform a duty. In the law of bailment, the word is the opposite of negligence, and synonymous with care, q. v. ; and, like the latter term, three degrees of dili- gence are distinguished, viz. , slight, or- dinary, and great. To charge the in- dorser of a negotiable bUl or note upon non-payment by the maker or acceptor, " due diligence " is required by the law- merchant; but what constitutes due dil- igence in any case depends largely upon the facts of that case. DIMINUTION. Is used in a techni- cal sense in reference to the practice upon a writ of error, or other remedy, involving the carrying the record of the proceedings of an inferior court before a com-t of superior jurisdiction for re- view. When a party to such a proceed- ing finds that the record as brought be- fore the appellate court is deficient, lacks any paper or matter material to his case, he must not proceed to an ar- gument of the cause until he has taken steps to supply the deficiency. This is done by alleging a diminution of the record; in other words, setting forth that the true record has been diminished by the abstraction or omission of the matter in question. Upon this showing a certiorari is issued to the court below, requiring the defect to be supplied. DIOCESE. In ecclesiastical law, the circuit or territorial extent of a bishpp's jurisdiction. Cowel; Jacob; Wharton. DIPLOMA 379 DIRECT Diocesan: a bishop, considered as he stands related to the clergy subordinate to him. Wharton. Diocesan courts, are the consistorial courts of each diocese, exercising general jurisdiction of all matters arising locally within their respective limits, with the ex- ception of places subject to peculiar juris- diction; deciding all matters of spiritual discipline, — suspending or depriving clergy- men, and administering the other branches of the ecclesiastical law. 3 Steph. Com. \i. DIPLOMA. Is from a Greek word, signifying to fold double, and is used, 1, in the sense of a royal charter, or let- ters-patent from the sovereign; and, 2, to denote a document issued by an incorporated society or institution of learning, certifying to the attainments and qualifications of persons who have pursued courses of study under the au- spices of the corporation, and, in the case of the learned professions, often declar- ing the recipient entitled to practise the profession. , Diplomatic agent, is a general term for various public officers who have been commissioned to superintend and trans- act the afiairs of the government which has employed them, in a foreign coun- try. Bouvier says that legatees, nuncios, internuncios, ambassadors, ministers, and plenipotentiaries are considered to be included; also, envoys, residents, ministers, charges d'affaires, and con- suls. Diplomatics, signifies the art of judg- ing of ancient charters, public docu- ments or diplomas, &c., and discrimi- nating the true from the false. Ency. Land. DIRECT, r. To command; to in- struct, in respect to future action or con- duct; to give orders. Direction, in one of its senses, means a command or instruction as to future action, and has a special use in this meaning, referring to the explanations given by a judge to the jury, touching their duties. These are sometimes called directions; more often instruc- tions. Direction is also applied to the governing body of a corporation; the directors considered jointly. Director. The management of the affairs of a private corporation aggre- gate is usually intrusted to a small body of persons chosen by the members or stockholders from among their own number; and these are called, in the various kinds of corporations, directors, managers, or trustees. No rule can be laid down as to the particular appropri- ateness of these terms to particular classes of corporations ; but dii'ectors ap- pears the most usual term, where the executive conduct and oversight of a large and active business enterprise is the chief element involved, and trustees, where the care, custody, and adminis- tration of fixed property is the leading duty. It is very usual to speak of the directors of a bank, insurance company, or raUroad company; but of the trustees of an academy, college, religious society, or savings-bank. Yet the terms are used interchangeably. The term di- rectors is sometimes used to include all the kinds. 1 N. Y. Rev. Stat. 599, § 53. The body of directors, managers, or trustees, taken jointly, is often styled the direction, or the directory. Directory statute. A statute which merely directs what shall be done, with- out avoiding acts in contravention of its provisions, or imposing a penalty for them, is called directory, as opposed to a mandatory statute, q. v. DIRECT, adj. This word has several qvasi technical uses in jurisprudence, which are, however, nearly connected with its vernacular meaning of immedi- ate;, by the natural, regular, or short course ; straightforward ; without circuity or interruption. The word direct, in a provision in a charter-party that the vessel "shall pro- ceed thence direct to ," means that the vessel is to take a direct course from the port named to the loading port, without de- viation or unnecessary delay, and not that she must leave the port named immediately. The Onrust, 6 Blatchf. 533. Direct evidence, is opposed to cir- cumstantial (q. «.), or indirect, and con- sists in inspection ; or testimony of those who have personal knowledge of the fact in question; or written evidence, showing its existence immediately and without circuitous argument or resort to inference. Direct examination. The first exam- ination of a witness, in the orderly course, upon the merits ; the opening examina- DIRECT 380 DISABILITY tion on behalf of the party calling him is thus called, as opposed to any prelimi- nary examination merely to test his competency, which is an examination in pais, or on the voir dire, q. v. ; or to the examination on behalf of the adverse party, called cross-examination, q, v. Direct interest. A direct Interest, such as would render the interested party incom- petent to testify in regard to the matter, is an interest which is certain, and not contin- gent or doubtful. A matter which is de- pendent alone on the successful prosecution of an execution cannot be considered as uncertain, or otherwise than direct, In this sense. Lewis w. Post, 1 Ala. 65. Direct interrogatories, or questions. In the popular sense, these expressions mean inquiries that are explicit, pointed, admit of no evasion. But, in law, they more usually denote interrogatories framed or questions put to a witness on behaK of the party calling him, as op- posed to cross-interrogatories or ques- tions, which are those administered on behalf of the adverse party. Direct a jury. The expressions to direct the jury, directions to the jury, &c., are equivalent to instruct, &c. Direct line. Property is said to de- scend or be inherited in the direct line, when it passes in lineal succession; from ancestor to son, grandson, great- grandson, and so on. Direct payment. The provision of the California practice act, allowing attach- ment in actions upon contracts "for the direct payment of money," applies to cases of contract where the liability of the de- fendant can be ascertained with certainty, and is not in doubt until after a trial ; or, in other words, where the amount to be paid is fixed by the terms of the contract, or can be readily ascertained from the in- formation which it afiords. In such cases, the payment which has been promised in a certain sense may be said to be direct. While this view is not very satisfactory, it is more so than any other which finds color in the ambiguous words of the statute. Hathaway v. Davis, 3.3 Cal. 161. - Direct tax, as used in the provision of the United States constitution, prescribing apportionment of such taxes, does not in- clude a tax upon the business of an insur- ance company. Pacific Ins. Co. v. Soule, 7 Wall. 433. Historical evidence shows that personal property, contracts, occupations, and the like, have never been regarded as the sub- jects of direct tax. The phrase is under- stood to be limited to taxes on land and its appurtenances, and on polls. Veazie Bank V. Fenno, 8 WaU. 533. Direct tax does not include an income tax or a succession tax. The succession tax, imposed by the acts of congress of June 30, 1864, and July 13, 1866, on every "devolution of title to any real estate," was not a direct tax, within the meaning of the constitution, but an impost or excise, and was constitutional and vahd, Scholey v. Eeu, 23 Wall. 331, 347. The tax upon incomes imposed by the act of June 30, 1864, is not a " capitation or other direct tax," within the meaning of the constitution. Clark v. Sickel, 14 Int. Rev. Bee. 6. DISABILITY. Incapacity; want of legal power to act or take. Jacob specifies several kinds of disa- bilities, according to their origin: disa- bility by act of an ancestor, as where an ancestor is attainted of treason which (in England) corrupts the blood of his descendants, so that they cannot inherit from him ; disability by act of the party himself, as where a man, by granting away the reversion of his lands under lease, puts it out of his power to make a renewal of a lease (this, we think, would scarcely be deemed a disability as' the term is now ordinarily used) ; by act of God, as where a person becomes in- sane ; by act of the law, as the incapa- city of an alien to hold lands ; also, the disabilities of idiocy, infancy, and cover- ture. At the present day, disability is generally used to indicate an incapacity for the full enjoyment of ordinary legal rights; thus married women, persons imder age, insane persons, and felons convict are said to be under disability. Sometimes the term is used in a more limited sense, as when it signifies an impediment to marriage, or the restraints placed upon clergymen by reason of their spiritual avocations. (2 Steph. Com. 240,663.) Mozley^W. Disabilities are of two classes : absolute, which whoUy disable the person ; such are outlawry, excommunication, attainder, and alienage; and partial, as infancy, cover- ture, idiocy, lunacy, and drunkenness. Wharton. Disability implies want of power, not want of inclination. People v. Supervisors of Ulster Co., 32 Barb. 473. The objection that suit cannot be brought by an heir or cestui que trust, because the right of action is, for the time being, vested in the representative or trustee, is not a disability to sue. Disability means the want of legal capacity to do a thing. It may re- late to the power to contract, or to bring suits, and may arise out of want of suffi- cient understanding, as idiocy, lunacy, in- fancy; or want of freedom of will, as in the case of a married woman, and persona DISBAR 381 DISCHARGE under duress, or out of polic7 of the law, as alienage, when the alien is an enemy, outlawry, attainder, prcemunire^ and the like. The disability is something pertain- ing to the person of the party, — a personal incapacity, — and not to the cause of action, or his relation to it. There must be a pres- ent right of action in the person, but some want of capacity to sue. Meeks v. Vas- sault, 3 Sawyer, 206. The word disability, in a statute provid- ing what shall be done in the event of death or disability of a public officer, is extensive enough to cover any cause which prevents the officer from acting. A resignation oper- ates to produce a disability. State v. Mayor, &c. of Newark, 27 N. J. L. 185, 197. DISBAR. To deprive an attorney, bar- rister, or counsellor, &c., of his status and privileges as such ; to strike off the roll. DISBURSEMENT. Paying out or expending money ; also, the sum of money paid out or expended ; expendi- ture. Where an executor, guardian, or trustee pays out money on account of the estate or fund which he holds, such expenditures are termed disbursements ; if properly made, they are allowed as credits in his account ; and usuaDy his compensation is in the form of a com- mission upon Ms receipts and disburse- ments. The term is also applied to expendi- tures necessarily incurred in the regular course of proceedings in an action, which are allowed to be included in the costs recovered by the successful party under the codes of procedure and practice acts of some of the states. The word disbursements, in the provision of the Alabama code regulating the com- pensation of administrators, means money or currency paid out in extinguishment of the liabilities of the decedent, or the ex- penses of administration. Wright v. Wilk- erson, 41 Ala. 267. The disbursements allowed to be recov- ered as costs by the successful party in an action under the New York code of proced- ure do not extend beyond the due and regu- lar proceedings in the action. The ordinary expenditures of the parties are not included. Case V. Price, 9 Abb. Pr. 111. DISCHARGE. Has various uses in jurisprudence additional to, or varying slightly from, its vernacular meanings. As applied to the person, discharge, v., very frequently means to release, legally, from confinement; to set free, by authority. A prisoner set at liberty by a mob is rescued, not discharged. Act- ual corporal confinement is not always implied; to say that an employer dis- charges a workman is usual, but it is not so to say that a master discharges a slave. As applied to things, to dis- charge signifies to disembarrass or re- lieve; to throw off or remove a bur- den, as a vessel discharges her cargo. As applied to demands or -rights in ac- tion, to discharge signifies to cancel, extinguish, or satisfy, irrespective of whether it is done by payment or other- wise, so that the liability is lawfully, removed; as to discharge debts, incum- brances, or legacies. Discharge, n. : signifies the act or pro- ceeding of setting a person free, reliev- ing a thing of some burden, or cancelling a demand. And if this is done or evi- denced by a legal document, that docu- ment is also termed a discharge. Discharging a jury is spoken of the act or order of the court dismissing the jury from any further consideration of a cause. This is done when the continu- ance of the trial Is, by any cause, ren- dered impossible; also, when the jury, after deliberation, cannot agree on a ver- dict. Discharge is used in various senses : Of the discharge of a bankrupt under section 48 of the bankruptcy act, 1869, by which he is freed of all debts and liabilities provable under the bankruptcy, with cer- tain specified exceptions. (2 Steph. Com. 161, 162; Eobsm Blccy.) Of the discharge of a surety, whereby he is released from his liability as surety. (2 Steph. Com. 107.) Of the release of a prisoner from confine- ment. Of the payment of a debt, whereby the debtor is freed from further Uability. Of the release of lands, or money in the funds, from an incumbrance, by payment of the amount to the incumbrancer, or other- wise, by consent of the incumbrancer. Of an order of a court of justice dismissing a jury on the grounds that they have per- formed their duties, or are unable to agree in a case before them. Of the reversal of an order of a court of justice ; thus we say, such an order was " discharged on appeal," &c. Mozley ^ W. In equity practice, discharge signifies a statement of disbursements, and an offset of counter-claims, brought in and filed, on accounting before a master in chancery, after the complainant's charge. See Charge and Discharge. The term discharge for money, in a stat- utory enumeration of instruments which may be the subjects of forgery, includes an ordinary receipt for money paid, not being an accountable receipt. Commonwealth v. Talbot, 2 Allen, 161. DISCLAIM 382 DISCONTINUANCE Discharged, in a statute limiting the time for suing a guardian's bond to four years from the time when the guardian shall be discharged, means any mode by which the guardianship is effectually determined and brought to a close ; as by the removal, resignation, or death of the guardian, the marriage of a female guardian, the arrival of a minor ward at the age of twenty-one, or otherwise. Loring v. Alline, 9 Cush. 68. Discharged, in a statute directing that if a defendant is not tried within a certain time he shall be discharged, if considered by itself, might mean discharged from im- prisonment without trial, or from the further prosecution of the indictment, or from the legal penalty of the crime. When consid- ered with reference to other statutes of the same nature, and to the probable intent of the legislature, it should be construed as directing that the defendant, for want of due prosecution of the indictment, shall be discharged from imprisonment or from his recognizance, and not from the indictment or from the legal penalty of the crime. State V. Garthwaite, 23 N. J. L. 143, 148. DISCLAIM. To deny, disavow, or renounce a claim, interest, or right. Disclaimer : the act, declaration, or document by vrhich one denies, disa- vows, or renounces some claim, interest, or right which he has formerly alleged, or which has been imputed or offered to him. Under the United States patent laws (Rev. Stat. § 4917), whenever, through inadvertence, accident, or mistake, and without any fraudulent or deceptive in- tention, a patentee has claimed more than that of which he was the original inventor, he may make a disclaimer, in writing, to be recorded in the patent office, of such parts of the thing patented to him as he does not choose to hold by virtue of his patent; and this disclaimer is treated as a part or a qualification of the original specification. In pleading, disclaimer is the formal renunciation of claim to the subject- matter in suit, or of some claim relative to it. This has been employed some- times in equity and in the common-law pleading. Disclaimer is used : Of an answer of a person made defendant to a bill in chancery in respect of some in- terest he is supposed to claim, whereby he disclaims all interest in the matters in ques- tion. Of course, a defendant will not be allowed by disclaiming to avoid giving to the plaintiff any discovery or relief which may be justly due to him. {Hunt Eq.) Of any act whereby a person refuses to accept an estate which is attempted to be conveyed to him ; as, for instance, where land is conveyed to an intended trustee without his consent, and he refuses to ac- cept it. This is called the disclaimer of an estate. (1 Sieph. Com. 479, 480.) Of the refusal by the trustee in a bank- ruptcy to accept a burdensome lease or other onerous property of the bankrupt. {Robson Bhcy. ; Fawcett L. §• T. 257 ; Rule 28 of Bankruptcy Rules, 1871.) Of disclaimer of tenure, — that was where a tenant, who held of any lord, neglected to render him the due services, and, upon an action brought to recover them, disclaimed to hold of the lord: which disclaimer of tenure in any court of record was a forfeit- ure of the lands to the lord. (2 Bl. Com. 275, 276; 1 Steph. Com. 465, 466.) This is called disclamation in Scotch law. (Bell) Brown. The object of a disclaimer is to prevent an estate passing from the grantor to the grantee. It is a formal mode of expressing the grantee's dissent to the conveyance be- fore the title has become vested in him. But if the grantee once assents, and the ' title thereby becomes vested in him he cannot, by any disclaimer, revest the estate in the grantor. If he could, the disclaimer would have the effect of a deed, which it cannot have : the object of the latter being to transfer property; of the former, to prevent a transfer. Watson v. Watson, 13 Conn. 83. It is essential to a valid disclaimer that the case be such that the estate or thing disclaimed would pass or vest but for the disclaimer, unless it be made an express condition of the grant that the grantee shall elect. Jackson v. Richards, 6 Cow. 616. DISCONTINUANCE. 1. In its most common use, in American law, signifies the termination of a suit by the plain- tiff's neglect or omission to keep it prop- erly in court; which was, originally, by his failure to keep up a proper record of successive continuances. 2. In English real-property law, dis- continuance signifies an interruption to the possession, such as arose when a ten- ant in tail made a conveyance for longer than he had right to, whereby those en- titled to the property on the determina- tion of his estate could not enter, but were driven to an action. 3. In common-law pleading, discon- tinuance has been applied to the break or interruption in the due course of pleading, when the defendant puts in a plea which omits to answer some part of the declaration, and the plaintiff fails to take action upon the omission. A power to discontinue mail service was DISCOUNT 383 DISCOUNT held to be exercised hy an order for a " sus- pension " of tlie service. Reeside v. United States, 8 Wall. 38." In practice, discontinuance and dismissal import the same thing ; viz., that the cause is sent out of court. Thurman v. James, 48 Mo. 235. A discontinuance of an estate, otherwise called discontinuance of possession, is de- fined in Bacon's Abridgment as " such an alienation of possession, whereby he who has a right to the inheritance cannot enter " (without bringing an action), " but is driven to his action ; " as where a tenant in tail made a feoffment in fee-simple, or for the life of the feoffee, or in tail, — all which were beyond his power to make, for that by the common law extended no further than to make a lease for his own life. In such case, the possession by the feoffee after the death of the feoffor was termed a discontinu- ance ; the ancient legal estate being gone, or at least suspended, and for a while dis- continued. For the heir in tail, remainder- man, or reversioner was deprived of his right of entry, and driven to his action to recover the land. (3 Bl. Com. 171 ; 3 Steph. Com. 388, 389. ) But, from the fifteenth cen- tury to 1833, a tenant in tail could ordinarily bar entirely all future interests in the land by a common recovery, and, since the year 1833, by a disentailing deed. Discontinu- ances, therefore, prior to their express abo- lition, had long become obsolete and un- meaning; and they are now abolished by Stat. 3 & 4 Wm. IV. ch. 27, passed in 18'33, and 8 & 9 Vict. ch. 106, § 4, passed in 1845. (1 Steph. Com. 510, note.) kozley Sr W. A discontinuance in common-law plead- ing thus arises : If a defendant plead only to part of a declaration, and say nothing as to the remainder, the plaintiff is entitled to sign judgment against him by nil dicit, as to the unanswered part of the declara- tion. But if the plaintiff demur or reply to the plea, without signing judgment for the part not answered, the whole action is said to be discontinued. A discontinuance is cured, however, after verdict, by the stat- ute of jeofails, 32 Hen. VIII. ch. 30 ; and, after judgment by nil dicit, confession, or non sum informatus, by Stat. 4 Anne, ch. 16. Wharton. DISCOUNT. May, in a general sense, be understood as a counting off, an allow- ance or deduction from a gross sum on any account whatever. Dunkle v. Eenick, 6 Ohio St. 527. In a statute providing that, in certain actions by assignees, the defendant shall be allowed the benefit of "all payments, discounts, and set-offs," previous to notice of the assignment, the word discount must be understood to mean every detention or abatement of the claim, or, more properly speaking, every equity against the claim. Ferguson v. Hill, 8 Stew. 485. The term discount, as a substantive, sig- nifies the interest allowed in advancing upon bills of exchange or negotiable secu- rities I and to discount a bill is to buy it for a less sum than that which upon its face is payable. Saltmarsh ». Planters', &c. Bank, 14 Ala. 668. Although the discounting of notes or bills, in its most comprehensive sense, may mean lending money and taking notes in payment, yet, in its more ordinary sense, the discounting of notes or bills means ad- vancing a consideration for a bill or note, deducting or discounting the interest which will accrue for the time the note has to run. Philadelphia Loan Co. t. Towner, 13 Conn. 248. Discount, in its general sense, is appli- cable to either business or accommodation paper, and to loans or sales by way of dis- count, when a sum is counted off or taken from the face of the paper at the time the money is advanced upon it ; but, when used with reference to dealings of banks, it means a deduction or drawback made on advances or loans of money upon negotia- ble paper, or other evidences of debt, pay- able at a future day, which are transferred to the bank. Niagara County Bank v. Baker, 16 Ohio St. 87. By the language of the commercial world, and the settled practice of banks, a discount by a bank means, ex vi termini, a deduction or drawback made upon its ad- vances, or loans of money, upon negotiable paper or other evidences of debt payable at a future day, which are transferred to the bank. Fleckner v. Bank of the United States, 8 Wheat. 338. Discounting by a bank means lending money upon a note, and deducting the in- terest or premium in advance. City Bank of Columbus V. Bruce, 17 N. Y. 507, 515; State V. Boatsmen's Savings Bank, 48 Mo. 189. That the buying exchange by a bank is, in effect, discounting paper, see People v. Oakland Co. Bank, 1 Dougl. (Mich.) 282. Discount includes " to buy ; " for discount- ing, in most cases, is but another term for buying at a discount. Tracy v. Talmadge, 18 Barb. 456, 462. To the contrary, Far- mers', &c. Bank v. Baldwin, 23 Minn. 198. Discount does not necessarily imply a purchase and sale ; it is quite as consistent with a loan upon the security of the notes of a third party as with the sale of them. Re Weeks, 13 Bankr. Reg. 263. The purchase of uncurrent bank-bills, payable at a distant place, and not, there- fore, immediately available, is analogous to a purchase of a note not due ; and if such a purchase is made at a legal rate of dis- count, the transaction is to be deemed discounting, within the New York act to authorize the business of banking. People V. Metropolitan Bank, 7 How. Pr. 144. An advance upon a note of a sum of money equal to the face of it, without de- ducting any interest or receiving any pay- ment of interest, is not a discount of a note within the meaning of a statute restrain- ing foreign corporations from discounting DISCOVERT 384 DISCOVERY notes ■within the state. Noble v. Cornell, 1 A set-off is not a discount. Trabue v. Harris, 1 Mete. (Ky.) 597. The rule for calculating discount on cor- rect principles is as follows : As the amount of £100 for the given rate and time is to the given sum or debt, so is £100 to the present worth, or so is the interest of £100 for the given time to the discount of the given sum. McOuU. Comm. Diet. The usual method of discount is inaccu- rate ; i.e., deducting £5 per cent at the com- mencement of the credit. The true discount for any given sum, for any given time, is such a sum as will in that time amount to the interest of the sum to be discounted : the proper discount, therefore, to be received for the immediate advance of £100 due twelve months hence is not £5, but £4 15s. 2id. ; for this sum will, at the end of the year, amount to £5, which is what the £100 would have produced. Wharton. DISCOVERT. Not married ; not subject to the disabilities of coverture. It applies equally to a spinster and a widow. DISCOVERY. 1. Ascertaining some- thing previously unknown. Thus we speak of the discovery of America; of discoveries in nature and science. And often, in the latter application of the word, the thing or truth newly ascer- tained is called a discovery. The constitution empowers congress to secure for limited times to inventors the exclusive right to their discoveries, U. S. Const, art. 1, § 8, cl. 8; and un- der this grant congress has enacted (act of July 4, 1838, 5 Stat, at L. 112, § 6 ; Rev. Stat. § 4886) that any person who has discovered or invented any new or useful art, machine, improvement, &c., may obtain a patent therefor. Under this legislation, it is well settled that a discovery of an abstract principle, a the- ory, or a fact, cannot be protected by a patent: to entitle himself to a patent, the applicant must reduce to practice what he has discovered; must embody it in some practical machine or method for rendering it available or useful. Burr V. Duryee, 1 Wall. 531 ; Lowell v. Lewis, 1 Mas. 182; Barrett v. Hall, Id. 447 ; Blanohard v. Sprague, 3 Sumn. 535; Stone V. Sprague, 1 Story, 270; Wyeth V. Stone, Id. 273; 4 Mo. Law Rep. 54; Grant v. Mason, 1 Law Inst. ^ Reo. 22 ; Sickels V. Borden, 3 Blatchf. 535; Evans V. Eaton, Pet. C. Cl. 322, 341; Whitney V. Emmett, Baldw. 303. A principle in the abstract, a fundamental truth, an original, cannot be patented; as no one can claim in them an exclusive right. Nor can an exclusive right exist to a new power, should one be discovered, such as steam, electricity, or ariy other power of nature. In all such cases, the processes used to extract, modify, and concentrate the natural agencies consti- tute the invention. The elements of the power exist; the invention is not in discovering them, but in applying them to useful objects. Leroy v. Tatham, 14 How. 156. A discovery, by experiment or otherwise, that a particular natural substance will, in appropriate methods of administration, produce an assigned physiological or pathological effect on the human body, is not patentable, 8 Op. Att.-Gen. 269. In the consideration of this last principle, in Morton v. The New York Eye Infirmary, which was a suit for infringement of a patent granted to Morton for a discovery of the anaes- thetic properties of ether. Judge Ship- man observed that very little light could be shed on the question of the patenta- bility of such a discovery, by attempt- ing to draw a distinction between the words discovery and invention. In its naked, ordinary sense, a discovery is not patentable. It is only where the ex- plorer has gone beyond the mere domain of discovery, and has laid hold of the new principle, force, or law, and con- nected it with some particular medium or mechanical contrivance, by which or through which it acts on the material world, that he can secure the exclusive control of it, under the patent act. It is then an invention, although it em- braces a discovery. Sever the force or principle discovered from the means or mechanism through which he has brought it into the domain of invention, and it immediately falls out of that do- main ; it is then a naked discovery, and not an invention. Discovery, as used in the patent laws, depends upon invention. Every invention may, in a certain sense, embrace more or less of discovery, for it must always include something that is new; but it by no means follows that every discovery is an invention. 5 Blaichf. 121. DISCOVERT 385 DISCRETION Discovery constitutes the original foun- dation of title to lands on the American continent, as between the different Euro- pean nations; the title thus derived was the exclusiye right of acquiring the soil from the natives, and establishing settle- ments upon it ; the title was to be consum- mated by possession. Upon the discovery of America, the rights of the original in- habitants were, to a considerable extent, impaired, but in no instance entirely disre- garded. The Europeans respected the right of the natives as occupants, but asserted the ultimate dominion to be in themselves ; and claimed and exercised, as a consequent to this ultimate dominion, a power to grant the soil while yet in the possession of the natives. Johnson v. Mcintosh, 8 Wheat. 543. 2. In equity jurisprudence, discovery is the disclosure by a defendant, in an- swer to a bill filed to compel it, of mat- ters important to enable a complainant to maintain his rights. The bill filed for this end is called a bill of discovery, q. V. By the common law, neither party to an action was required to disclose to the other either documents or circum- stances which might be useful to the lat- ter in evidence, in advance of such exam- ination of witnesses as might be obtaina- ble on the actual trial. Hence resort was often had to the court of chancery, which would in certain cases, upon a bill of dis- covery being filed, decree that the de- fendant thereto should make a particular disclosure to the plaintiff. But, at the present day, bills of discovery are less necessary. In the English court of chancery, discovery of documents may be obtained under the jurisdiction act, 1852, by summons at chambers; and, under Stat. 14 & 15 Vict. ch. 99, and 17 & 18 Vict. ch. 125, discovery may now also be had at law ; and those statutes contain numerous provisions for obtaining discovery by means of inter- rogatories. Most of the states, partic- ularly those which have adopted codes of reformed procedure, have also enacted statutes under which a party to an action may have an examination of the adverse party before the trial, or may obtain an inspection of books and documents nec- essary to enable him to prepare his case. Discovery is a word generally applied to answers given by one party in an action at law or suit in equity to interrogatories filed by the other. It is also used in reference to the disclosure by a bankrupt of his prop- erty for the benefit of his creditors. Moz- ley §• W. VOL. I. 25 DISCREDIT. To discredit a wit- ness is to adduce considerations which diminish his credibility. It is substan- tially the same as impeach, unless it is somewhat milder; does not so distinctly import introduction of testimony that the witness is unworthy of belief. DISCREPANCY. A difference or variance between two things which ought to correspond ; as between two counterparts of a contract or indenture ; between the testimony given by a wit- ness at two different times concerning the same fact. DISCRETION. 1. The decision of what is equitable, judicious, or right, in view of and guided by the circumstances of the case and the wisdom of the magis- trate, unfettered by specific rules of posi- tive law. When any thing is left to any person to be done according to his discretion, the law intends it must be done with sound discre- tion, and according to law ; and the court of king's bench hath a power to redress things that are otherwise done, notwith- standing they are left to the discretion of those that do them. (XLUl.Abr.in.) Dis- cretion is to discern between right and' wrong ; and, therefore, whoever hath power to act at discretion is bound by the rule of reason and law. (2 Inst. 56, 298.) And though there be a latitude of discretion given to one, yet he is circumscribed, that what he does be necessary and convenient, without which no liberty can defend it. (Hob. 158.) Jacob. Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague, and fanciful, but legal and regular. Rex V. Wilkes, 4 Burr. 2539. _ When applied to public functionaries, discretion means a power or right con- ferred upon them by law, of acting officially in certain circumstances, according to the dictates of their own judgment and con- science, uncontrolled by the judgment or conscience of others. This discretion rm- doubtedly is to some extent regulated by usage, or. If the term is preferred, by fixed principles. But by this is to be understood nothing more than that the same court can- not, consistently with its own dignity, and with its character and duty of administer^ ing impartial justice, decide in different ways two cases in every respect exactly alike. The question of fact whether the two cases are alike in every color, circumstance, and feature is of necessity to be submitted to the judgment of some tribunal. Judges f. People, 18 Wend. 79, 99. When it is said that something is left to the discretion of a judge, it signifies that he DISCUSSION 386 DISINTERESTED ougllt to decide according to the rules of equity and the nature of circumstances, and so as to advance the ends of justice. When- ever a clear and well-defined rule has been adopted, not depending upon circumstances, the court has parted with its discretion as a rule of judgment. Discretion may be, and is to a very great extent, regulated by usage or by principles which courts have learned, by experience, will, when applied to the great majority of cases, best promote the ends of justice ; but it is still left for the courts to determine whether a case is exactly like in every color, circumstance, and feature to those upon which the usage or principle was founded, or in which it has been applied. Piatt v. Munroe, 34 Barb. 291. 2. The capacity to distinguish be- tween what is right and wrong, lawful or unlawful, wise or foolish, sufficiently to render one amenable and responsible for his acts, is also called discretion; and the age at which it is ordinarily at' tained is called years of discretion. But this is a vernacular rather than a legal sense of the term, though of some im- portance in criminal law. DISCUSSION. By the Roman law, sureties were not primarily liable to pay the debt for which they became bound as sureties; but were liable only after the creditor had sought payment from the principal debtor, and he was unable to pay. This was called the benefit or right of discussion. Under those systems of ju- risprudence which adopt the Roman law, and under the present law of France, the rule is similar; and the obligation con- tracted by the surety with the creditor is, that the latter shall not proceed against him until he has first discussed the princi- pal debtor, if he is solvent. This right the surety enjoys, as the beneficium ordinis vd excussionis ; or, if other persons are joined with him in the obligation as sureties, he is not in the first instance to be proceeded against for the whole debt, but only for his share of it, if his co-sureties and co-obligees are solvent. This is commonly known as the benefit of division, or beneficium divisio- nis. Wharton. In Scotch law, discussion signifies, 1. A process against the principal debtor for whom another is surety; 2. The ranking of the proper order in which heirs are liable to satisfy the debts of the deceased. Bell. DISENTAILING ASSURANCE, or DEED. A species of conveyance, au- thorized by Stat. 3 & 4 Wm. IV. ch. 74 (which abolished the old system of fines and recoveries), for the purpose of bar- ring an estate tail. By this assurance, which is in the form of a simple inden- ture, but which requires to be enrolled within six months of its execution in the court of chancery, the tenant in tail (with or without the consent of the pro- tector, when there is any such) con- veys the lands to a nominal grantee,. to the use of himself, the tenant in tail, his heirs and assigns; by which means, and under the statute of uses, he becomes a tenant in fee; or for a less estate, if the deed is so drawn. It is usual to add that the object of the assurance is to dock and bar the entail and all remain- ders, &c. Where there is a protector, and he refuses to concur, the disentail- ing deed has the effect of a fine only, but otherwise it has the effect of a common recovery. DISFRANCHISE. To deprive one of franchises, privileges, or rights; more specially and usually, to divest one of political rights. Originally, when all political rights were exercised in virtue of membership in some particular cor- poration, disfranchisement was used of the removal of a member from his rights and privileges as such; corresponding to expulsion, applied to members of non- political corporations. DISGUISE. A person lying in am- bush, or concealed behind bushes, is not in disguise, within the meaning of a statute declaring the county liable in damages to the next of kin of any one murdered by per- sons in disguise. Dale County w. Gunter, 46 Ala. 118, 142. DISHERISON. An old word, equiv- alent to disinheriting; debarring from inheritance. DISHONOR. Is applied (as verb and sometimes as noun) to commercial paper, meaning to refuse or neglect, or a refusal or neglect to accept or pay a a bill, check, note, or draft, when due. DISINTERESTED. Free of any prospect of pecuniary advantage or loss, from the result of the matter depending. See Interest. Disinterested, as used in an insurance policy with reference to arbitrators, is not applicable to an agent of the insurance company. JEtna Ins. Co. v. Stevens, 48 m. 31. A justice selected by a poor debtor to hear his disclosure may be considered disin- terested, if he is not related by consanguinity or affinity, and has no pecuniary interest in the result ; and his official act will not be rendered void because he counselled and aided the debtor in preparing for his dis- closure, although this should have deterred DISJUNCTIVE 387 DISPLACE him from acting as one of the justices. Lovering v. Lamson, 50 Me. 334. DISJUNCTIVE. Allegations in an indictment or pleading which charge a party in the alternative, as that he sold or gave goods, forged or caused to be forged, are called disjunctive allega- tions. This mode of pleading is defec- tive. DISMES. Tenths; tithes, y.M. The original form of dime, the name of the American coin. DISMISS. To send away; to reject, as unworthy of consideration or atten- tion; to send out of court. In law, the word was originally used in equity prac- tice only, applying to the removal of a cause out of court without further hear- ing. The dismissal of a bill in equity, upon a hearing on the merits, unless ex- pressed to be without prejudice, is a bar to another bill for the same cause ; but if granted for defect of form or structure, for failure to prosecute, or on other ground not going to the merits, is no bar to a new suit for the same subject- matter. By the practice acts and codes of procedure of some of the United States, a dismissal otf the complaint or proceeding of the plaintiff is allowed, in actions legal as weU as equitable in their nature, on various grounds; as for neg- lect to prosecute the cause, or to comply with an order in the action, failure to make out a case on the trial, &c. Much difference of opinion has existed as to the effect of such dismissals ; some de- cisions holding that a dismissal, at least in actions at law or of a similar nature, has merely the eSect of a nonsuit, }. v. ; others, that a dismissal operates as an absolute bar to another action in all cases, especially those equitable in their natm-e. The question is put at rest in New York as to future cases by the pro- vision of section 1209 of the code of civil procedure, taking effect Sept. 1, 1877, that " a final judgment dismissing the complaint, either before or after a trial, rendered in an action hereafter com- menced, does not prevent a new action for the same cause of action, unless it expressly declares that it is rendered upon the merits." A bill in equity may be dismissed by the court at the hearing ; also by the plaintiff before the decree, when he is not able to prosecute his suit effectually, either as against all the defendants, or as against such of them as he thinks he can dispense with. After decree, the bill can only be disraissed 'upon rehearing or appeal; and by the defendant, either for want of prose- cution, or upon an abatement of the suit by the death of the plaintiff or otherwise. (Umith Eg. Pr. 364.) Whartm. DISORDER. As used in compounds common in jurisprudence, seems to signify breach of good conduct and good morals, in life, affecting the community. Disorderly house. This is a some- what general term for an abode, build- ing, dwelling, or establishment kept for uses which are contrary to decent con- duct and good morals. Independent of statutes giving particular definitions of what shall be deemed a disorderly house within the jurisdiction, the term seems properly to include various kinds; bawdy-houses, gaming-houses, and the liquor-shops prohibited by law, as well as houses made obnoxious by the habit- ual recurrence of fighting, noise, and violence. Disorderly persons. This phrase is often used in statutes to describe a class of persons amenable to police regidation, in view of their habits of misconduct. Who may be dealt with as disorderly persons depends on the statute provi- sions of the locality. DISPAUPER. When a poor person has been admitted to sue in forma pau- peris, and through the subsequent ac- quisition of property, or any other suffi- cient cause, it is proper that he should be deprived of the privilege of suing in that quality, and he is deprived of the privilege accordingly, he is said to be dispaupered. DISPENSE. To set aside or suspend the general law, in respect to a particu- lar case. Dispensation: an exemption granted by the sovereign power to an individual from the operation of a law. The power of dispensation, in this sense, has been exercised in ecclesiasti- cal and imperial governments; also, in early times in England; but is not known in the United States. DISPLACE. As used in shipping ar- ticles, should be construed to mean disrate, and not to import authority of the master to discharge a second mate ; and evidence DISPONE 388 DISSEISIN of a usage in the whaling trade never to disrate an officer to a seaman, but discharge him, when his displacement becomes neces- sary, cannot be allowed to vary such inter- pretation. Potter V. Smith, 103 Mass. 68. DISPONE. In Scotch law, signifies to grant, convey, or dispose of prop- erty. Disponee: the person to -whom a disposition is granted. Disposition: a, unilateral deed of alienation, by which a right to property, either heritable or movable, is granted. Bell. DISPOSE. 1. To dispose of property I lis to alienate it; assign it to a use; be- stow it; direct its ownership. Disposal or disposition: an act bestowing prop- erty, or directing its future ownership; as disposition by will. 2. The words " dispose " and " dispo- sition " are sometimes used of controver- sies or suits, in the sense of to decide or determine them ; of decision or determi- nation. See Exp. Russell, 13 Wall. 664. A conveyance by way of advancement, in good faith, is a disposal of property, within the meaning of a covenant in a lease that the lessor will renew, " should he not dispose of " the premises during the term. Elston V. Schilling, 42 N. Y. 79. Disposing capacity or mind. These are alternative phrases in the law of wills for sound mind, and testamentary capacity, q. v. DISPOSSESS. To eject or oust; to deprive of possession ; chiefly used of real property. Dispossession: the wrong of excluding the person rightly entitled to occupy real property from the occu- pation and enjoyment. Dispossession is distinguished from disseisin ; the one relates to occupancy, the other to the right. Dispossess case, proceeding, or -Warrant. This is a phrase which has crept into some use, but cannot be justi- fied etymologicaUy, signifying the pro- ceedings taken when a landlord invokes a statutory remedy, such as is known in New York as summary proceedings to obtain possession of real property against a tenant who holds over, or makes default in payment of rent. DISSEISIN. Deprivation of seisin; a wrongful putting out of him that is seised of the freehold; a wrongful dis- turbance and ouster of one in freehold possession of land. To constitute dis- seisin, originally, an actual disposses- sion was necessary; but afterwards many acts were held to amount to disseisin, if the injured party chose to consider them as such ; and this was called disseisin by election, — disseisin by actual disposses- sion being distinguished by the term " ac- tual disseisin," or " disseisin in fact." 2 Crabb Ileal Prop. 1063, 1064, § 2455. A person who so enters and puts a party out of possession of the freehold is termed a disseisor; he who is disseised is termed the disseisee. Disseisin is important, chiefly as the foundation or commencement of a new title by adverse possession ; and it is in that aspect that the question, what acts constitute a disseisin, has been most frequently considered. When one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands, this is termed a disseisin, being a deprivation of that actual seisin or corporal possession of the freehold which the tenant before en- joyed. In other words, a disseisin is said to be when one enters intending to usurp the possession, and to oust another from the freehold. To constitute an entry a dis- seisin, there must be an ouster of the free- hold, either by taking the profits, or by claiming the inheritance. Brown. The accurate definition and description of disseisin has been the subject of much discussion. The term is somewhat equivo- cal, and the same facts may prove a dis- seisin for some purpose and in some as- pects, and not in others. Sumner v. Stevens, 6 3fet: 337. The history of the English system of jurisprudence abundantly shows that the meaning attached to the term has varied with the state of society, and the rules ap- plicable to the enjoyment of real estates ; but it was in every stage of it, in substance, the act of divesting the owner of his seisin and possession of the laud, and substituting in its place the ownership and possession of the disseisor. In its origin, when the seisin constituted the title of the owner to his freehold, it was the forcible expulsion by the tenant, or the wrongful entry upon him, and the forcible holding by the in- truder, which was called a disseisin; and in those days force would naturally be em- ployed to effect a change of possession by a wrong-doer. But in after times, when the titles to land became more complex, and possessions more diversified, other acts were held to be disseisins. The wrong-doer does not, in our times, forcibly, and with- out the claim of right, expel his neighbor from the tenements he covets, nor hold the owner out with the strong hand of power ; yet if he silently enters upon the possession DISSEISIN 389 DISSEISIN of a stranger, and either under pretence of right which he knows to be groundless, or without color of title, usurps and claims it as his own, keeps out and sets at defiance the former possessor and all others, and holds exclusively, claiming the fee, the act partakes too largely of all the properties of the ancient disseisin to be distinguished from it. In modern times, an ouster by any means short of actual force is generally identified with adverse possession, which is understood to embrace every possession held by the possessor in exclusion of others. But an ouster effected without the employ- ment of force often is, in eifect and iM. practical purposes, a disseisin. Clapp v. Bromagham, 9 Cow. 530, 552. A man is not necessarily disseised be- cause another is in possession of his prop- erty. If a tenant for a term of years holds over, and the landlord is driven to an eject- ment to turn him out, the landlord by such holding over is not disseised : it is only by acts of a peculiar character that the re- lation of disseisor and disseisee is brought about. Of actual disseisin, — disseisin in despite of the owner, — there are four kinds : three by a stranger, and one by the tenant in possession connected in privity of estate. 1. Where a man enters upon the immediate freeholder; and turns hin out by force, this is generally and emphatically called a disseisin. 2. Where a stranger enters upon the seisin in law, which the heir takes on the death of his ancestor, it is then called an abatement. 3. Where a similar entry is made upon the estate of the reversioner or remainder-man, this is called an intru- sion. 4. Where a discontinuance or devest- ing of the estate in remainder or reversion is affected by the acts of the particular tenant or tenant of the freehold, whether he be tenant in tail, by the curtesy, or for life. A disseisin in fact is a tortious ex- pulsion of the true owner ; it is an estate gained by wrong and injury, and therein it differs from dispossession, which may be by right or wrong. A bare entry on an- other, without an expulsion, makes such a seisin only that the law wiU adjudge him in possession that has the right. Varick V. Jackson, 2 Wend. 166. Disseisin by election differs from actual disseisin, not only in the acts by which it is created, but also in the consequences which result from it. It arose out of the exten- sion of the remedy by writ of assise, origi- nally applicable only to cases of abatement, and of novel or recent disseisin, to almost every injury that could be done to corpo- real as well as incorporeal hereditaments, if the plaintiff would admit himself to have been disseised. The superiority of the remedy over the old actions induced parties to acknowledge themselves disseised when in strictness they were not ; and such dis- seisin was called a disseisin by election, to distinguish it from actual disseisin. lb. To make a disseisin that will be the com- mencement of a new title, producing that change by which the estate is taken from the rightful owner and placed in the wrong- doer, the possession taken by the disseisor must be hostile or adverse in its character, importing a denial of the owner's title in the property claimed; otherwise, however open, notorious, constant, and loug-con- tmued it may be, the owner's action will not be barred. It is not every unlawful entry into lands that will work a disseisin. Such entry will never have that effect, so long as the true owner still retains his pos- session; for, by intendment of law, when two persons are in possession at the same time, the seisin must be adjudged to be in the rightful owner. But neither is dispos- session necessarily disseisin. Whether there is or is not actual disseisin must depend upon the character of the act done, and the intention of the doer. Many acts are justly held to operate a disseisin, or not, at the election of the true owner. To make a dis- seisin in fact, there must be an intention oo the part of the party assuming possession to assert title in himself to the definite and particular parcel, or there must be overt acts which leave no room to inquire about intention, and which amount to actual ouster in spite of the real owner. A man claiming title only to a specified line, capa- ble of being ascertained, cannot, by igno- rantly having possession up to another line, acquire a title by disseisin to land lying be- tween the two which he does not inten- tionally claim. Worcester v. Lord, 56 Me. 265. The general rule that a disseisor cannot qualify his own wrong, but must be consid- ered as a disseisor in fee, is introduced only for the benefit of the disseisee, for the sake of electing his remedy. To constitute one a disseisor in fee, it must appear that he entered without right ; for if his entry were congeable, or his possession lawful, his entry and possession will be considered as limited by his right. For the law will never construe a possession tortious, unless from necessity; on the other hand, it will pre- sume every possession lawful. When, there- fore, a naked possession is in proof, unac- companied with evidence of its origin, it will be deemed lawful and coextensive with the right set up by the party. If the party claim only a limited estate, and not a fee, the law will not, contrary to his intentions, enlarge into a fee. It is only when the party is proved to be in by disseisin that the law will construe it a disseisin of the fee, and abridge the party of his right to qualify his wrong. Bicard o. Williams, 7 Wheat. 59. If a mere trespasser, without any claim or pretence of title, enters into land, and holds the same adversely to the title of the owner, it is an ouster or disseisin of the owner. But in such case the possession of the trespasser is bounded by his actual oc- cupancy, and consequently the owner is not disseised, except as to the portion so occu- pied. Clarke v. Courtney, 5 Pet. 319. Where a person enters under a convey- DISSENT 390 DISTANCE aace from a third party who has no title, he is a disseisor. Bradstreet v. Huntington, 5 Pet. 402. Where a person enters into possession under a recorded deed, claiming title to the entirety, and exercises acts of ownership, it is a disseisin of all persons who claim title to the same land, to the extent of the boun- daries in the deed. Preseott v. Nevers, 4 Mas. 326. To constitute disseisin, the disseisor must have the actual and exclusive occupation of the land, claiming to hold it against him whom he ousted, or who was formerly seised. Bates v. Norcross, 14 Pick. 224. The disseisor must show a substantial inclosure, an actual occupancy, definite, positive, and notorious. CSburn v. Hollis, 3 Mete. 125. To constitute disseisin under the statutes of Maine, it is not necessary that the land be surrounded with fences, or rendered in- accessible by water ; but it is sufiieient if the possession and improvement are open and notorious, and comporting with the ordi- nary management of a farm, although that part of the same wliich composes the wood- land shall not be inclosed. TEton ». Hunter, 24 Me. 29. Disseisin must either be an occupancy of a part under a deed of conveyance recorded, or such an open and visible occupancy that the proprietor may at once be presumed to know the extent of the claim and occupa- tion of him who has intruded himself un- lawfully into his lands, with intent to ob- tain tide to them by wrong. Foxcroft v. Barnes, 29 Me. 128. Disseisin, as used in the Missouri statute concerning forcible entry and detainer, is not used in its ancient technical sense, but implies actual dispossession. McCartney v. Alderson, 45 Mo. 35. According to the modern authorities, there seems to be no legal difference be- tween the words seisin and possession, al- though there is a difference between the words disseisin and dispossession; the for- mer meaning an estate gained by wrong and injury, whereas the latter may be by right or by wrong ; the former denoting an ouster of the disseisee, or some act equivalent to it, whereas by the latter no such act is im- plied. Slater v. Eaulson, 6 Met. 439. DISSENT. Disagreement ; disap- proval ; refusal or withholding of assent. The most frequent use of the term in American law is to denote that one member of a court by which a decision is rendered does not concur in it. It is generally understood that if a non-con- curring judge announces, in connection with the decision, that he dissents, he is at liberty, should the same question come before the court another time, to urge and vote for a different determi- nation of it. Dissenter. In English ecclesiastical law, a non-conformist; a person who disputes the authority or tenets of the church of England, and adheres to another church. The word is usually confined to Protes- tant seceders from the established church and their descendants. (2 Steph. Com. 706.) Mozhy i- W. Dissenting opinion. The opinion in which a judge who does not concur in a decision pronounced by a majority of the court makes known his views. DISSOLVE. 1. To sunder a con- tract or relation, as to dissolve partner- ship. 2. To annul corporate existence. 3. To discharge, open, or release a legal proceeding involving a lien or seiz- ure, as to dissolve an attachment or injunction. Dissolution: the act of dissolving. The phrase, dissolving a corporation, is sometimes used as synonymous with annul- ling the charter or terminating the existence of the corporation, and sometimes as mean- ing merely a judicial act which alienates the property and suspends the business of the corporation, without terminating its existence. A corporation may, for certain purposes, be considered as dissolved so far as to be incapable of doing injury to the pub- lic, while it yet retains vitality so far as es- sential for the protection of the rights of others. iJe Independent Ins. Co., 1 udmes, 104. Upon what is meant by dissolution of a corporation, and the difference between a dissolved or extinct corporation, and one which is merely dormant or inactive, see Mayor, &c. of Colchester v. Seaber, 3 Burr. 1866; Commercial Bank v. Lockwood, 2 Harr. (Dd.) 8. A dissolution is the civil death of the parliament, and is effected in three ways : By the sovereign's will, expressed either in person or by representation, which is a branch of the royal prerogative. By the demise of the crown ; but Stat. 7 & 8 Wm. in. ch. 15, 6 Anne, ch. 7, and 37 Geo. III. ch. 127, enact the continuance of the par- liament in being for six months. By length of time; i.e. seven years. (1 Geo. I. st. 2, ch. 38.) Wharton. DISTANCE, in a former rule of court ^' as to service, held to mean the space be-^>= tween two points by the usually travelled '■ road; not the mail-route. Smith a. Ingra- ham, 7 Cow. 419. Distance is to be measured in a straight line as the crow flies. Lake v. Butler, 5 El, Sr B. 92. Where the trustees of a turnpike road were prohibited by a local act of parlia- ment from erecting any toll-gate within DISTIL 391 DISTRICT three miles of Bargate, in the town of South- ampton, it was held that the distance was to be measured by a straight line and not by the road. Jewell v. Stead, 6 El. ^ B. 350. DISTIL. A rectifier of spirits distilled from domestic materials was held not a distiller of spirituous liquors within the meaning of the act of July 24, 1813, § 98. United States v. Tenbrook, Pet. C. Ct. 180. Any person, firm, or corporation who distils or manufactures spirits, or who brews or makes mash, wort, or wash for distilla- tion, or the production of spirits, is a dis- tUler. Act of July 13, 1866, § 9, 14 Stat. at L. 117. The strict meaning of distillery is, a place or building where alcoholic liquors are dis- tilled or manufactured ; not every building where the process of distillation is used. Atlantic Dock Co. v. Libby, 45 N. Y. 499. DISTRAIN. Is the verb correspond- ing to the noun distress, and signifies to take by distress. Distraint: the act or proceeding of seizing personal property by distress. DISTRESS. An ancient common- la\7 remedy, by which a party might take the personal property of another into his possession, and hold it as a pledge or security until he obtained satisfaction by the payment of a debt, the discharge of some duty, or reparation for an injury done; with the right, in certain cases, to sell it to obtain satisfaction. The im- pounding of cattle damage feasant, or the taking by the landlord the goods and chattels of the tenant upon the premises for the non-payment of rent, are famil- iar examples. It was distinguishable from the taking of property by execu- tion to satisfy a judgment, and from the taking of a personal chattel, without legal process, fi-om the possession of a ■wrong-doer into the hands of the party injured; and it was limited to certain kinds of personal property, and could be exercised only in certain cases, and in a certain manner. Distress, particularly distress for rent, is less widely used at the present day than formerly. Distress is the taking of a personal chat- tel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong com- mitted. The term is also applied to the thing taken or distrained. Jacok Distress infinite. A distress that has no bounds with regard to its quantity, and may be repeated from time to time, until the stubbornness of the wrong-doer is over- come. (3 Bl. Com. 231 ; 3 Steph. Com. 253, note «.) MozUy ^ W. DISTRIBUTE. Generally, to ap- portion; to divide among several; to separate into shares, and deliver them to the persons entitled to receive them. Distribution: the act or proceeding of dividing among several persons, by shares; and distributee: a person who receives a share upon such a division, are specially used, in jurisprudence, of the division of assets of an intestate es- tate among the widow and children, or among the next of kin. This is regu- lated, in England, by the statute of dis- tributions, 22 & 23 Car. II. oh. 10, amended by Stat. 29 Ca,r. II. ch. 3, (2 Bl. Com. 515; 2 Steph. Com. 208, 212) ; and throughout the United States, by statutes of the several states, usually known as statutes of distribution. Distributee is admissible to denote one of the persons who are entitled, under the statute of distributions, to the personal es- tate of one who is dead intestate. Henry V. Henry, 9 Ired. L. 278. Under the statute of distributions, dis- tributees is a word of limitation, and not a word of purchase ; and, in its use under the statute, the rule in Shelley's case has a like operation with respect to personalty as the word heirs has at common law with respect to land. Boyd v. Small, 4 Jones Eq. 39. It has been held that when the same clause of a will gives real and personal estate to the testator's children, " to be distributed when required, at mature age or majority, in equal parts," and present words of be- quest are used, the word distributed, with reference to the personal property, will be construed as synonymous with divided, and as postponing, not its distri- bution, but its division among the legatees, until the period fixed by the testator. Chighizola v. Le Baron, 21 Ala. 406. DISTRICT. A division of territory. Originally, the circuit within which a man might be compelled to appear, or the place in which one hath the power of distraining, Jacob; but, in modern usage, divisions of territory may be called districts, irrespective of the pur- pose for which they are made. See Db- PAETMBNT. Thus, Collection districts are the districts organized for the ad- ministration of the United States laws for the collection of duties ; congressional districts are the districts into which the United States are divided, for the elec- tion of representatives to congress ; elec- tion districts are districts assigned for the purpose of conducting elections; DISTRICT 392 DISTRINGAS judicial districts are districts created for judicial purposes, for defining jurisdic- tion of courts, and distributing judicial business ; land districts are districts cre- ated for regulating sales of public lands. There have been many other kinds. District attorney. A title usual throughout the United States, designat- ing the law officer of either the state or national governments, within a particu- lar district or county; as distinguished from the attorney-general, whose powers are commensurate with the entire do- main. Under the United States government there is a district attorney for each of the numerous judicial districts (fifty-eight in 1876) in which the country is divided. ' Their duties are delineated in title 8 of the Rev. Stat. ch. 14. The gen- eral nature of a district attorney's du- ties is to act as attorney for the United States in his district, to prosecute in such district all delinquents for crimes and offences cognizable under the au- thority of the United States, and all civil actions in which the United States shall be concerned, except before the supreme court. He is not, however, regarded as hav- ing a general authority to commence suits in the name of the United States, except in extraordinary cases, where the remedy or lien of the United States may be lost or endangered by delay. In other cases, he awaits the directions of the president, some head of a depart- ment, or the solicitor of the treasury. It has been held that the courts can rec- ognize the United States as a plaintifE on the record, only when the record shows that the United States appear as plaintiffs by the district attorney of the district. United States v. Doughty, 7 Blatchf. 424; United States v. Blaisdell, 3 Ben. 132; United States v. McAvoy, 4 Blatchf. 418. In several of the states, the local offi- cer who represents the state within a particular county or other district is also called district attorney. District court. This name is some- times used in the United States to des- ignate a court or class of courts form- ing part of a judicial system, sometimes having a general original jurisdiction as to subject-matter, but usually limited as to territorial authority. As compared with the name circuit court, when both terms are employed in one system, dis- trict court often denotes a tribmial of inferior jurisdiction, exercised within narrower territorial limits than the cir- cuit court. District courts, in various cities, sometimes exercise a jurisdiction similar to that of justices of the peace over a portion or the whole of the par- ticular city; as in the cities of Newark, New Orleans, and New York. The name is applied to particular .state courts in California, Connecticut, Iowa, Kansas, Louisiana, Minnesota, Nebraska, Nevada, Ohio, and Texas. In the judicial system of the United States, one or more district courts are established in every state, held by a single judge resident in the district. These courts have original jurisdiction over all admiralty and maritime causes and aU proceedings in bankruptcy, and over all penal and criminal matters cog- nizable under the laws of the United States, exclusive jurisdiction over which is not vested either in the supreme or circuit courts. A cause originally tried on the territo- rial side of the old district court, and under territorial laws, goes back to the new state district court, mider a mandate from the United States supreme court, that it " be remitted to the district court." Irvine v. Marshall, 3 Minn. 72. District of Columbia. A portion of the territory upon the Potomac river, in the United States, originally ten miles square, which was ceded to the United States by the states of Virginia and Maryland, to constitute the seat of government of the United States. It is not a state nor a territory, but is by the constitution subject to the exclusive ju- risdiction of congress. The laws passed by congress in the exercise of this power, as in force Dec. 1, 1873, have been re- vised and republished by authority of congress. DISTRINGAS. That you distrain. The name of a writ in English practice, which was directed to the sheriff, com- manding him to distrain a person by his goods and chattels; the emphatic words of the writ being pracipimus dbi quod distringas, — we command you, that DISTURBANCE 393 DIVIDEND you distrain. The object of the writ was to enforce compliance hy the person named with something required of him ; usually to compel an appearance by a de- fendant upon whom process could not be personally served. It was also used in equity practice to compel an appear- ance by a corporation aggregate. Distringas juratores. That you dis- train the jurors. The name of a writ in English practice, commanding the sheriff to distrain the jurors by their goods, so that he may have them before the court upon the day appointed, which issues at the same time as the venire, although in theory it follows the venire, and is founded on the supposed neglect of the jurors to attend. Distringas nuper vice comitum. That you distrain the late sheriff. The name of a writ in English practice to distrain the goods of a sheriff who has gone out of ofBce, for the purpose of compelling the performance by him of some act which he ought to have done while in office; such as the bringing in the body of a defendant under a rule to have the defendant's body in court, or the selling of goods taken under a fori facias. DISTURBANCE. 1. This word has had a technical sense, in England, de- noting a species of injury to real prop- erty, commonly consisting of a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of it. Eive principal varieties of this injury are mentioned: disturbance of franchise, disturbance of common, dis- turbance of ways, disturbance of tenure, and disturbance of patronage. 2. In many of the United States, laws have been passed punishing the ofience of disturbing religious meetings; or, sometimes, of other lawful public as- semblies. Some cases have arisen de- termining what amounts to disturbance of, or disturbing, a meeting, within the intent of such laws. The offence intended to be prohibited by the statute is sufficiently defined by the words " molest or disturb : " they have a well-determuied signification. State v. Os- kins, 28 Ind. 364; compare Marvin v. State, 19 Id. 181. In a Koman Catholic church, at the close of the sermon, and while the pastor was engaged in taking up a collection, one of the members of the congregation stood up in his pew, and in a loud voice demanded of the clergyman an explanation of some remarks he had made in the coarse of his sermon relative to the conduct of a mem- ber of the congregation. It was held that this was such a disturbance of a religious meeting as justified the clergyman, or any member of the congregation, in using as much force as was necessary to expel him from the house. Wall v. Lee, 34 N. Y. 141. That the acts of disturbance must be wilfully committed with intent to disturb, was held in Harrison v. State, 1 Ala. Sel. Cas. 61 ; that they need not be, was held in Wall V. -Lee, 34 N. Y. 141. Disturbing a single member of the con- gregation was held enough to constitute the offence, in Cockreham v. State, 7 Humph. 11 ; and not enough to sustain an action, in Owen v. Henman, 1 Watts ^ S. 548. DITCH. See Drain. DIVEST. Equivalent to devest, q. v. DIVIDEND. This word is used, 1, in reference to corporations, to signify profits as apportioned among sharehold- ers; 2, in bankruptcy or insolvency practice, to denote assets as apportioned among creditors ; and, 3, in old English law, as equivalent to one counterpart of an indenture, g. v. Dividend imports a distribution of the funds of a corporation among its members, pursuant to a vote of the du-ectors or man- agers. Williston V. Michigan Southern & Northern Indiana R. B. Co., 13 Allen, 400. Dividend does not necessarily imply a pro rata distribution. Hall v. Kellogg, 12 N. Y. 325, 335. Dividend commonly means a sum which a corporation sets apart from its profits to be divided among its members. So held of a guaranty. Lockhart v. Van Alstyne, 31 Mich. 76 ; Taf t o. Hartford, &c. E. E. Co., 8 E. I. 310. It commonly means a sum of money dis- tributed pro rata among stockholders, with- out reference to the source from which it was derived. Osgood v. Laytin, 3 Abb. App. Dec. 418. Where an act of the legislature, author- izing a bank to retain a certain share of the dividends upon the stock owned by the state, towards certain unpaid stock of the state, it was held that a portion of the cap- ital stock, divided among the stockholders, was not dividends within the act. Attorney- General V. State Bank, 1 Dev. ^ B. Eg. 545. Where depositors in a savings bank do not receive a fixed rate of interest inde- pendently of what the bank itself makes or loses in lending their money, but receive a share of such profits as the bank, by lend- ing their money, makes, after deducting DIVINE 394 DO expenses, &c., such share of profits is a dividend within the meaning of the internal revenue act of 1864, as amended by the act of 1866, and not interest. Gary v. Sav. Union, 22 Wall. 38. Dividend is a word of verj' general and indefinite meaning. It has not, in law, any particular and technical signification. As used in N. C. Const, art. 9, § 6, appropriat- ing to the university all property accruing to the State "from escheats, unclaimed dividends, or distributive shares of the es- tates of deceased persons," it is used as convertible with distributive shares. The meaning is all dividends or distributive shares of estates of deceased persons. Uni- versity V. N. C. Railroad Co., 76 N. C. 103. Divided equally, as used in a devise to a nephew, two nieces, and two children of another nephew, was held to mean a per capita division. Purnell o. Culbertson, 12 Bush (Ky.), 369. ' DIVINE SERVICE. That this ex- pression does not include sabbath schools, see Gass' Appeal, 73 Pa. St. 39. Divine service was also the name of a feudal tenure, by which the tenants were obliged to do some special divine services in certain ; as to sing so jnany masses, to distribute such a sum in alms, and the like. (2 Bl. Com. 102; 1 Steph. Com. 227.) It differed from tenure in frankalmoign in this, that, in case of the tenure by divine service, the lord of whom the lands were holden might distrain for its non-performance, whereas, in case of frankalmoign, the lord has no remedy by distraint for neglect of the service, but merely a right of complaint to the visitor to correct it. JMosdey Sf W. DIVISUM IMPERIUM. A divided jurisdiction; a jurisdiction belonging to more than one power or tribunal, or ex- ercised by them alternately. Applied to the jurisdiction exercised alternately by courts of common law and admiralty between high and low water mark ; also to the concurrent jurisdiction'exercised over a subject-matter by common-law courts and courts of equity. DIVORCE. The separation of hus- band and wife by law; the judicial dis- solution or relaxation of a marriage. See A MBNSA et thoeo. We think it is generally used, in the United States, as implying a valid mar- riage, and, therefore, as excluding an adjudication that no valid marriage ever existed; and as including both the mere separation of the parties and the entire dissolution of the marriage: these two being distinguished as absolute and lim- ited divorces. But Bouvier's dictionary advises that it should be confined to dis- solution of a valid marriage ; excluding separation a mensa et thoro as well as decree of nullity. See also the views expressed by Mozley & Whiteley, be- low. Divorce is the separation of husband and wife by the operation of the law. There are two kinds of divorce, — the one total, the other partial ; the one a vinculo matrimonii, the other merely a mensa et thoro. Holthouse. Divorce is a separation of man and wife, and is of three kinds : 1. A mensa et thoro, which is where the marriage is just and lawful ab initio; but, for some supervenient cause, it has become improper or impossible for the parties to live together. This kind of divorce is now generally called a judicial separation. Its elf ect is to place the parties in the position of single persons, except that neither party can lawfully marry again in the lifetime of the other. 2. Divorce a vinculo for some cause sub- sequent to the marriage. This, by the law of England, may take place for adultery, combined, if the adultery be that of the husband, with some other circumstance of aggravation, as a wife cannot obtain a dis- solution of the marriage for the simple adultery of the husband. The effect of this kind of divorce is to dissolve the mar- riage, and allow the parties to marry again ; but it does hot bastardize the issue. Previously to the divorce act, 1857 (20 & 21 Vict. ch. 85), this kind of divorce was ob- tainable by private act of parliament ; it is now granted by the divorce court. 3. Divorce a vinculo for some cause of impediment existing prior to the marriage. This is a declaration that the marriage is a nullity, as haviSg been absolutely unlawful from the beginning. This kind of divorce not only enables the parties to contract marriage at their pleasure, but bastardizes the issue, if any. (1 Bl. Com. 440-442 ; 2 Steph. Com. 277-282.) Modey ^ W. DO. I give. Doutdes. I give, that you may give. Do ut facias. I give, that you may do. The Roman jurists divided all con- tracts not distinguished by special names — hence termed innominate contracts — into four classes, each class represented , by one of the following formulsB : 1. Do ut des, — I give, that you may give. 2. Do ut facias, — I give, that you may do. 3. Facio ut des, — I do, that you may give. 4. Facio ut facias, — I do, that you may do. In the first, something is given, that something may be received in return; in the second, something is given, that something may be done in return ; in the third, something is done, DOCK 395 DOLLAR that something may be given in return ; in the fourth, something is done, that something may be done in return. The list is not .exhaustive ; it might be ex- tended by adding, for example, do ut non facias, — I give, that you may re- frain from doing something; wiA facto ut non facias, — I do, that you may re- frain from doing something. DOCK, V. To curtail; to diminish; to shorten ; as to dock an entail. Dock, n. . 1. An inclosed space, commonly appro- priated, in English criminal courts, to the accused during trial. 2. A space between two wharves fitted for mooring vessels, or a structure adapted for inclos- ing vessels while they lie in port. Dockage. The compensation charge- able for use of a dock. Dockage in a dry-dock is in the nature of rent, and subject to the will of the pro- prietor of the dock. Ives v. The Buckeye State, 1 Newb. 69. Dockage or wharfage charges are not tonnage duties, even though measured or rated by the capacity of the vessel using the dock or wharf. A city is not forbidden from imposing them by the provision of the federal constitution that no state shall lay tonnage duties. Packet Co. v. Keokuk, 95 U. S. (5 Otto) 80; 45 Iowa, 196. A city may prescribe, by ordinance, fees not unreasonable, which must be paid for use of wharves ; and such an ordinance is not unconstitutional, even though it exacts a payment from vessels moored at places where no wharves have been provided. Keokuk v. Keokuk, &c. Packei Co., 45 Iowa, 196. A city, though it cannot lay tonnage du- ties, may exact wharfage compensation for use, by vessels, of wharves built and main- tained by the city ; and rating wharfage by the size of the vessel, to be ascertained by its tonnage, does not necessarily render the enactment void. North Western, &c. Packet Co. V. St. Louis, 4 Dili. 10; and see Id. 17, n. The presumption is that a dock or wharf erected by a city is for public use ; and in the absence of an ordinance prescribing wharfage dues, a vessel is not liable to make payment to the city for using a dock or a wharf. Muscatine v. Keokuk, &c. Packet Co., 45 Iowa, 185. Dock-master. An officer invested with powers within the docks, and a certain dis- tance therefrom, to direct the mooring and removing of ships, so as to prevent obstruc- tion to the dock entrances. Mozky ^ W. Dock-warrant. A document given to the owner of goods imported and ware- housed in the docks, as a recognition of his title to the goods, on the bills of lading and other proofs of ownership being produced Like a bill of lading, it passes by indorse- ment and delivery, and transfers the ab- solute right to the goods described in it. Dock-warrants are drawn on paper, having the water-mark of the dock company upon them, and are negotiated from hand to hand, or pledged with bankers and others for loans as mercantile securities, .repre- senting the value of the goods described in them. Pulling Oust, of Lond. ; see also Levies Int. Comm. Law, 505. DOCKET. Originally, seems to have signified a memorandum of the sub- stance of a document indorsed upon it, so that its natm-e and general effect might be known without opening and perusing it at length. But these mem- oranda came to be usually, especially in the case of judgments, transcribed in a book; and the name followed them in that form. In modem use, the word, used as a noun, signifies an entry, in brief, in a proper book, of the important acts done in court in the progress of a cause; also, the registry of judgments or decrees; also, sometimes, the book con- taining such registry; and, also, a list of causes liable to be called at a given term of court. See Calendar. Used as a verb, it means to enter or inscribe in a docket. Docquet and dogget are mentioned as old forms of spelling this word. The docket of judgments is a brief writ- ing or statement of a judgment made from the record or roll, generally kept in books, alphabetically arranged, with clerk of the court or county clerk. Stevenson v. Weis- ser, I Bradf. 343. DOCTOR. Means, simply, practitioner of physic, without respect to system pur- sued. A certificate of a homoeopathic phy- sician is a " doctor's certificate." Corsi v. Maretzek, 4 E. D. Smith, 1. DOCTORS' COMMONS. An insti- tution near St. Paul's Churchyard, in London, where, for long time previous to 1857, the ecclesiastical and spiritual courts used to be held. DOLE. A part or portion of a meadow is so called : and the word lias the general signification of share, portion, or the like ; as " to dole out " any thing among so many poor persons, meaning to deal or distribute in portions to them. ( Camel.) Holthouse. DOLLAR. In a bequest, can only mean dollar in the legal currency of the United States, not dollars invested in lands or 'stocks, estimated either at the market or par value, or at the original cost to the ' DOLUS 396 DOME-BOOK testator. Haleted v. Meeker, 18 N. J, Eg. 136. The word dollars, in a check, means dol- . lare in the lawful money of the United States ; and it cannot be explained hy ver- bal agreement or custom to have a difiEer- eut meaning. Howes v. Austin, 35 III. 396 ; Lawrence v. Schmidt, Id. 440. WJiere the amount of a debt is ascer- tained, the courts cannot recognize any difference between the gold dollar and the legal-tender note of the denomination of one dollar. Bank of the State v. Burton, 27 Ind. 426. A written mstrument for the payment of money expressed to be payable in dollars, is, in "legal effect, payable in whatever the laws of the United States declare to be legal tender. To allow the debtor to show by parol that payment in confederate money was intended is erroneous. Miller V. Lacy, 33 Tex. 351. A bond conditioned to pay seventy-one dollars " in current bank money," is satis- fied by the payment of seventy-one cur- rent bank money dollars ; i.e., bills, in dis- tinction from coin. Gardner v. Hall, Phill. L. 21. A note for so many dollars " in gold and silver," is a note for the direct payment of money, and for the satisfaction of which a tender of bullion, gold and silver bars, old spoons, rings, &c., is not sufficient. Hart v. Flynn, 8 Dana, 190. DOLUS. Deceit; evil intention. 1. In the civil law, this term included every kind of craft, falsehood, or device used to circumvent, deceive, or mislead another. Various distinctions were made between dolus and fraus ; the essence of dolus being the intention to deceive, •while fraus imported actual damage in consequence of the deceit. A distinc- tion was also dravra between dolus malus and dolus bonus, the former tei'm being applied to deceit, with the intention thereby to injure another; while dolus bonus designated that justifiable de- ceit" which was considered allowable in certain cases; such as the crafti- ness, skill, or adroitness employed by a seller to effect a sale, not amounting to false representations. Accordingly, the eulogies bestowed by a trader upon his goods, or his taking advantage of the buy- er's ignorance of a change in the market price, of which he should have been aware, in order to obtain a better price, and such acts, amount merely to dolus bonus, and do not vitiate the contract. But a false statement as to the character or quality of the goods, made with the intention of deceiving, on which the buyer is expected to rely, and in reliance on which he makes the purchase, amounts to dolus malus. 2. The word dolus was also used in the civil law, in the sense of ci-iminal intention, evil design, or malice; often in distinction from culpa, which im- ported merely fault from want of care or error of the understanding, without will to do wrong. The phrase doli capax — capable of criminal intention — was fi-equently used in defining the liability of infants to punishment for crimes ; and is employed in the same connection in modern law, as expressing the capacity of distinguishing right from wrong. Dolus versatur in generalibus. Fraud deals in generalities. A person intending to deceive uses general terms. This maxim is taken from the civil law, but is of universal application, being founded upon human nature rather than any artificial system of law. It is applied to the terms of a contract, which, if expressed in broad and general terms, give the party who may wish to take advantage of another an opportunity to contend that the lan- guage of the contract should be con- strued as is most for his advantage. Hence a party who intends to deceive or act unfairly wiU adopt vague and general terms in expressing his obliga- tions, so that he may more easily escape, afterwards, the performance of what he pretends to undertake. The converse of this is expressed by the maxim, that a person using general terms only may be presumed to intend fraud. So as to statements or representations made to induce another to do or refrain from some act: if specific, they may easily be tested; i£ vague and general, they are probably fraudulent, and intended to mislead. DOMAIN. Dominion, ownership, or property; used particularly of lands, or sometimes of property, irrespective of the distinction between real and personal, as in the phrase eminent domain, and seldom applied to personalty alone. Also, the land itself, when spoken of with especial reference to the personal right of control over it. DOME-BOOK. An ancient English book of judgments. It must be distin- DOMESDAY-BOOK 397 DOMICILE guished from 'domesday-book, q. v. It was compiled under authority of Alfred, and is said to hare been extant so late as the reign of Edward IV. , but is now lost. It probably contained the princi- pal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. Dome- book, or domboo, was probably a general name for book of judgments. DOMESDAY-BOOK. According to Spelman and Jacob, there were several books which received this name. Dome- book seems to have been almost a gen- eral name for a book of judgments; and the addition of day to the leading one was not meant for any allusion to the final day of judgment, as some have conceived, but was to strengthen and confirm it, and signifies the judicial decisive record, or book of dooming justice and judg- ment. But the word generally refers to a particular book compiled in the reign and by the direction of William the Conqueror. It was in two volumes, and contained the details of a great survey of the kingdom, throughout all its counties. Five men in each county (called justices) were assigned in 1081 for the purpose of collecting the neces- sary statistics, and, they having com- pleted their statement in 1086, their re- turns were compiled together, forming the book in question. It is a final au- thority on questions of tenures and titles to lands as then existing. DOMESTIC. Domestics, or, in full, domestic servants, are servants who reside in the same house with the master they serve. The term does not extend to work- men or laborers employed out of doors. Exp. Meason, 5 Binn. 167. The Louisiana civil code enumerates as domestics those who receive wages and stay in the house of the person paying and employing them, for his own service or that of his family ; such as valets, footmen, cooks, butlers, and others who reside in the house. Persons employed in public houses are not included. Morehouse v. Dodge, 6 La. Ann. 276. A party hired for one day " to butcher and cut up beef" is not a domestic servant within the meaning of the Texas code ; and theft from the shop committed by him of his employer's property pending such em- ployment is theft from a house under the law. Richardson v. State, 43 Tex. 456. Domestic attachment. A process of attachment of a debtor's property, allowed by the laws of several of the United States against a resident of the state, upon some special ground, such as fraud in contract- ing the debt, deemed a reason why a stringent remedy should be allowed; and distinguished from foreign attachment, which is one allowed on the ground of non-residence. See Attachment. Domestic manufactures, in a state statute means, generally, manufactures within its jurisdiction. Commonwealth v. Giltinan, 64 Pa. St. 100. DOMICILE. Abode; home; place where one's dwelling or habitation is fixed. How distinguished from resi- dence, see Residence; also Abode; Home; Dwelling. In its ordinary acceptation, a person's domicile is the place where he lives or has his home. In a strict and legal sense, that is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Anderson v. Anderson, 42 Vt. 350 ; Home v. Home, 9 Ired. L. 99. In general, the place where an unmar- ried man has his business and exercises his political right is his domicile ; but not con- clusively so. Maloney v. Lindley, 1 PMa. 192. One's domicile is the place where one's family permanently resides. Daniel v. Sul- livan, 46 Oa. 277. A man may have a wife and family resi- dent in one state, while he himself is domi- ciled in another. Exchange Bank v. Cooper, 40 Mo. 169. To give a definition of domicile is diffi- cult. To determiae as matter of fact where the domicile is in a given case, is generally easy; ceases to be so, indeed, only when the actual facts of residence are made am- biguous by the want of any distinct and permanent abode, and the intention of the party cannot be ascertained. In such cases, the question often requires inquiry into the habits, character, pursuits, domestic rela- tions, and, indeed, the whole history of the individual ; and depends, in the end, upon a preponderance of the evidence in favor of one or two or more places. Hallet v. Bas- sett, 100 Mass. 167. Vattel defines domicile as the habitation fixed in any place, with an intention of al- ways staying there. This is approved by Savage, C. J. (1 Wend. 43) ; by Chancellor Walworth (8 Paige, 519) ; and, with slight variation, by Wilde, J. (10 Pick. 77). But an intention of remaining for a term of years, may, under some circumstances, es- tablish a domicile. Gilmaii v. Oilman, 52 Me. 165. To define, as Vattel does, a person's domicile as the habitation fixed in any place, with an intention of always staying there, is too strict, if taken literally. In this new and enterprising country it is doubtful whether one-half of the young men, at the time of their emancipation, fix DOMICILE 398 DOMICILE themselves in any town with an intention of always staying there. They settle in a place by way of experiment, to see whether it will suit their views of business and ad- vancement in life, and with an intention of removing to some more advantageous posi- tion if they should be disappointed. Never- theless, they have their home in their chosen abode, while they remain. Probably the meaning is, that the habitation fixed in any place, without any present intention of re- moving therefrom, is the domicile. At least, this definition is better suited to the eircimistances of this country. Putnam v. Jolmson, 10 Mass. 488. Domicile is the place where a person has fixed his habitation and has a permanent residence, without any present intention of removing therefrom. Crawford ». Wilson, 4 Barb. 504, 520. The place to which a person has removed, with intent to remain there an indefinite time, and as a place of present domicile, is the place of his domicile, although he may entertain a floating intention to remove else- where at some future period. Harris v. Firth, 4 Oranck C. Ct. 710; Anderson v. Anderson, 42 Vt. 350. By the term domicile, in its ordinary ac- ceptation, is meant the place where a person lives, or has his home. In this sense the place where a person has his actual resi- dence, inhabitancy, or commorancy, is sometimes called his domicile. In a strict and legal sense, that is probably the domi- cile of a person where he has his true, fixed, permanent home and principal establish- ment, and to which, whenever he is absent, he has the intention of returning. Two things, then, must concur to constitute dom- icile : first, residence, and, second, the inten- tion of making it the home of the party. There must be the fact and the intent. Domicile is of three sorts: domicile 'by birth, domicile by choice, and domicile by operation of law. The first is the common case of the place of birth, damicUium origin nis; the second is that which is voluntarily acquired by a party, jrrojirio marte ; the last is consequential, as that of the wife, arising from marriage. {Story Confl. Laws, ch. 3.) The best definition, as applied to an ac- quired domicile, is, that place in which a man has voluntarily fixed the habitation of himself and family, not for a mere special or temporary purpose, but with the present intention of making it a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home. (7 W.R.260.] Wharton. Domicile and residence mean the same thing ; and the domicile of an infant is the same as that of his father. Kennedy u. Ryall, 67 N. Y. 379. In international law, domicile means a residence at a particular place, accompanied with positive or presumptive proof of in- tending to continue there for an unlimited time. State v. Collector of Bordentown, 32 N. J. L. 192; PhilUmore, Law of Dom- icile, 13 ; compare the Venus, 8 Cranch, 253, 278. Domicile, although in familiar language used to signify a man's dwelling-house, has, in cases arising under international law, a technical meaning. It fixes the character of the individual with reference to certain rights, duties, and obligations, while dwel- ling-place and home have a more limited, precise, and local application. Jefferson v. Washington, 19 Me. 293. In order to ascertain this domicile, it is proper to take into consideration the situa- tion, the employment; and the character of the individual; the trade in which he is engaged, the family that he possesses, and the transitory or fixed character of his business, are ingredients which may prop- erly be weighed. Livingston v. Maryland Ins. Co., 7 Cranch, 506. Every person must have a domicile some- where. Abington v. North Bridgewater, 23 Pick. 170; Crawford v. Wilson, 4 Barb. 504. Where a person has two places of resi- dence, that will be held to be his domicile where he first resided. Oilman v. Oilman, 52 Me. 165. For some purposes, a man may have two domiciles. Greene v. Oreene, 11 Pick. 410. But a person can have only one domi- cile for one purpose, at one and the same time. Abington ». North Bridgewater, 23 Pick. 170; see Thomdike v. City of Bos- ton, 1 Mete. 242; Crawford v. Wilson, 4 Barb. 504. Every person has a domicile of origin, which he retains imtil he acquires another ; and the one thus acquired is in like manner retained. Abington v. North Bridgewater, 23 Pick. 170 ; Thomdike v. City of Boston, 1 Mete. 242; Kilburn v. Bennett, 3 Id. 199; Graham v. Public Administrator, 4 Bradf. 127. A domicile once acquired contuiues till a new one is gained. While a person is in transit, the old domicile remains. Little- field V. Brooks, 50 Me. 475 ; Jennison v. Hapgood, 10 Pick. 77 ; Islam v. Gibbons, 1 Bradf. 69 ; Clark v. Likens, 26 A^. J. L. 207. The existing domicile always continues until another is acquired; so that by the acquisition of another the former is relin- quished. To effect a change of domicile, there must be intention and act united. Crawford v. Wilson, 4 Barb. 504 ; Wayne v. Oreene, 21 Me. 357. One's original domicile clings closely, and cannot be changed by mere intent. The fact and the intent must concur. Hart V. Horn, 4 Kan. 232; Hallo well v. Saco, 5 Me. 143; Richmond v. Vassalboro'ugh, Id. 396 ; Ringgold v. Barley, 5 Md. 186. An intention to change the domicile, with- out an actual removal with intention of remaining, does not cause a loss of the domicile. State v. Hallett, 8 Ala. 159; Smith V. Croom, 7 Fla. 81 ; Brewer v. Lin- naeus, 36 Me. 428 ; Sears ». City of Boston, 1 Mete [Mass.) 250; Sacket's Case, 1 Mass, 58; Abington v. Boston, 4 Id. 312; Com- DOMICILE 399 DOMICILE monwealth v. Walker, Zd. 556; Granby v. Amherst, T Id. 1 ; Lincoln v. Hapgood, 11 Id. 350; Williams v. Whiting, Id. 424; Harvard College v. Gore, 5 Pick. 370; Home V. Home, 9 Ired. L. 99. The acquisition of a new domicile does not depend simply upon the residence of the party, or the time of his residenc^; hut such residence must he accompanied by an intention of permanently residing in the new domicile, and of abandoning the for- mer. Plummer v. Brandon, 5 Ired. Eq. 190 ; Wayne v. Greene, 21 Me. 857. Two things must concur to constitute a domicile: first, residence; and, secondly, the intention to make it a home. And if these two concur, it makes no difference how short the party's residence may be in the new domicile. Home v. Home, 9 Ired. L. 99. One who is residing in a place with the purpose of remaining there for an indefi- nite period of time, and without retaining and keeping up any animus revertendi to the former home which he has abandoned, will have his domicile in the place of his actual residence. Wilbraham v. Ludlow, 99 Mass. 587. The fact of residence alone, does not constitute the place the domicile of a party : it is the fact of residence, coupled with the intention of remaining permanently, which constitutes it. McKowen v. McGuire, 15 La. Ann. 637 ; s. p. Leach v. Pillsbury, 15 N. H. 137; State v. Daniels, 44 Id. 383; Boardman k. House, 18 Wend. 512 ; Ely v. Lyons, Id. 644; Frost v. Brisbin, 19 Id. 11 ; Graham v. Public Administrator, 4 Bradf. 127 ; Hegeman v. Fox, 31 Barb. 475 ; Brown V. Ashbough, 40 How. Pr. 260 ; Henrietta v. Oxford, 2 Ohio St. 32 ; Mclntyre v. Chappel, 4 Tex. 187. Domicile and residence are not synony- mous. The domicile is the home, the fixed place of habitation; while residence is a transient place of dwelling. Bartlett v. Mayor, &c. of N. Y., 5 Sandf. 44. Domicile means something more than residence : it includes residence with an in- tention to remain ,in a particular place. Isham V. Gibbons, 1 Bradf. 69 ; Haggart v. Morgan, 6 N. Y. 422 ; Matter of Thomp- son, 1 Wend. 45; Frost v. Brisbin, 19 Id. 13 ; Foster v. Hall, 4 Humph. 346. Domicile is but the established, fixed, permanent, or ordinary dwelling-place or place of residence of a person, as distin- guished from his temporary and . transient, though actual, place of residence. It is his legal residence, as distinguished from his temporary place of abode; or his home, as distinguished from a place to which business or pleasure may temporarily call him. Salem v. Jjysae, 29 Conn. 74. Domicile includes residence with an in- tention to remain ; without such intention, no length of residence will constitute a domicile. Smith v. Dalton, 1 Cin. 153. Domicile is the habitation fixed in any place, with the intention of always staying there ; while residence is much more tem- porary in its character. Mayor, &c. of N. Y. V. Genet, 4 Hun, 487. E«sidence has technically a more re- stricted meaning than domicile; but the words " not a resident " and " domicile," in the Missouri attachment law, must be held to be used with reference to the same sub- ject-matter, and to denote opposite condi- tions with reference to habitancy, but not differing in degree. One who has a domi- cile in Missouri cannot be a non-resident while temporarily absent. Chariton County w. Moberly, 59 Mo. 238 ; see also Re Watson, 4 Bankr. Re^. 613. The domicile of a citizen may be in one state, and his actual residence in another. Frost V. Brisbin, 19 Wend. 11. Domicile and residence are not neces- sarily the same under the laws relating to taxation. Bartlett v. City of N. Y., 5 Sandf. 44. Legal residence or inhabitancy, and domicile, in general, mean the same thing. Crawford v. Wilson, 4 Barb. 504; Lee v. Stanley, 9 How. Pr. 272. Ordinarily, the domicile of the husband is the domicile of the wife. Davis v. Davis, 30 7tt. 180; Green u. Green, 11 Pick. 410; Hackettstown Bank v. Mitchell, 28 N. J. L. 516; Hanberry v. Hanberry, 29 Ala. 719; Williams v. Saunders, 5 Coldw. 60. But a wife may acquire a domicile dif- ferent from that of her husband, especially for the purposes of a suit between her and her husband. Irby v. Wilson, 1 Dee. ^ B. Eq. 568 ; Green v. Windham, 13 Me. 2an. An infant takes the domicile of his par- ents, and retains it until some change is established. Hart v. Lindsey, 17 N. H. 235 ; Brown v. Lynch, 2 Bradf. 214. j ") 1 1-^. I / 1 He cannot, in general, during minority, ' acquire a new domicile. Hiestand v. Kuns, 8 Blackf. 345; Warren v. Hofer, 13 Ind. 167; Wheeler v. Burrows, 18 Id. 14; Par- sonsfield v. Kennebunkport, 4 Me. 47 ; Lacy V. Williams, 27 Mo. 280. After he has attained his majority, his removal elsewhere to reside, with no deter- minate intention of departure, will fix his domicile in such new place ; and the same will not be altered by his afterwards going away temporarily with the intent to return. Hart V. Lindsey, 17 N. H. 235. A citizen may have his home in one town, with all the privileges of an inhabi- tant, and yet have his legal settlement in another town. Putnam v. Johnson, lO Mass. 488. In discussions upon the poor-laws, the term domicile is frequently used. Its intro- duction has tended to confuse and mislead, rather than aid. In its ordinary sense, it has not the same restricted meaning as the words "residence," "dwelling-place," and " home " have. Warren v. Thomaston, 43 Me. 406, 418 ; compare Jefferson v. Wash- ington, 19 Id. 293; Littlefield v. Brooks, 50 Id. 475. The domicile of a sailor is the place DOMINANT 400 DOMUS where he voluntarily spends most of his time on shore. Guier v. O'Daniel, 1 Binn. 349, note ; and see, to nearly same effect, Sherwood v. Judd, 3 Bradf. 267 ; Matter of Seott, 1 Daly, 534 ; Matter of Hawley, Id. 631. In the case of a fisherman who usually lived in his boat in the summer, his domi- cile was held to be in the place to which he most usually resorted in the winter for board. Boothbay v. Wiscasset, 3 Me. 354. Domicile, defined according to the laws of France. Woodworth v. Bank of Amer- ica, 19 Johns. 392. Where it was urged, in contesting the validity of a will, that there was a distinc- tion between domicile and residence, and that the statement in the certificate of at- testation that the witnesses were domicili- ated in the city, was not a compliance with the law, which says " witnesses residing in the place," the word domiciliated was con- strued as synonymous with residing, and the legal distinction invoked was disre- tarded. Martin v. Kissinger, 26 La. Ann. 38. The term domicile of succession, as con- tradistinguished from a commercial, a politi- cal, or a forensic domicile, may be defined to be the actual residence of a man within some particular jurisdiction, of such char- acter as shall, in accordance with certain well-established principles of the public law, give direction to the succession of his personal estates. Smith v. Croom, 7 Fla. 81. DOMINANT. The tenement whose owner, as such, enjoys an easement over an adjoining tenement is called the dom- inant tenement; while that which is subject to the easement is called the servient one. DOMINUS LITIS. The owner of a suit. The master or principal in a suit, as distinguished from an agent or at- torney; the person having the real inter- est in the decision of a suit, who will derive the benefit of a favorable judg- ment, and will suffer the consequences of an adverse judgment. DOMIT^ NATURE. Of a tamed nature. A term applied to animals in which a man may have an absolute property, as distinguished from animals fercB naiurm (q. v.), which have not been captured or made the subjects of private property. Besides the domestic animals, — such as horses, cattle, poultry, &c., — the term domiice naturm includes wild animals that have been actually tamed, — as deer, swans, &o. DOMUS PROOERUM. The house of lords. One of the houses of the Brit- ish parliament. Generally expressed by the abbreviation dom. proc, and some- times by the initial letters D. P. Domua sua cuique est tutlssimum refugium. His own house is every man's safest refuge; every man's house is hi| castle. A man's private dwelling is a fortress for his personal protection and the protection of his family and property; and not only may he defend it against violence and injury by wrong- doers, but it is even a protection to some extent against legal process. In the leading case in England on the application of this maxim (Semayne's Case, 5 Rep. 91), which involved par- ticularly the right of an officer to enter a house to execute process, the foUovring rules are laid down: 1. The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose; and although the life of a man is a thing precious and favored in law, yet if thieves come to a man's house to rob or murder, and the owner or his servants kill any of the thieves, in defence of himself and his house, it is not felony. 2. When any house is recovered by any real action, or by ejectment, the sheriff may break the house, and deliver the seisin or possession to the demand- ant or plaintiff. 3. In all cases when the king is party, the sheriff, if the doors be not open, may break the party's house, either to arrest him, or to do other execution of the king's process, if otherwise he can- not enter. But, before he breaks it, he ought to signify the cause of his coming, and to make request to open doors. 4. In all cases where the door is open, the sheriff may enter the house, and do execution at the suit of any subject, either of the body or of the goods ; and so may the lord in such case enter the house, and distrain for his rent or ser- vice. 5. The house of any one is not a cas- tle or privilege but for himself, and shall not extend to protect any person who flies to his house, or the goods of any other which are brought and con- veyed into his house to prevent a lawful execution, and to escape the ordinary process of law ; for the privilege of hia DOMUS 401 DONATIO house extends only to him and his family, and to his own proper goods, or those which are lawfully and without fraud and covin there; and, there- fore, in such case, after denial on re- quest made, the sheriff may break the house. These principles, in substance, are still recognized as the common law of England and the United States upon this subject ; the general doctrine being that the immunity of a man's dwelling should not be violated, except where the public safety absolutely requires it; and, in pai'ticular, that outward doors of a" dwelling-house should not be broken open to execute any civil process, — criminal process being excepted, on the ground that the public safety should supersede the private protection. Chancellor Walworth, in deciding the case of Curtis v. Hubbard, 4 Hill, 437, remarks, in reference to Semayne's Case: By this decision, the right to close the outer door of the dwelling- house upon the sheriff when he came with an execution, at the suit of a pri- vate person, to levy upon goods, was placed upon the same basis as the right to prevent a similar entry when he came with like process to arrest the person of the defendant; and that appears to have been considered the settled law of Eng- land ever since. It has also been con- stantly recognized as the common law of the several states of the Union where the English common law prevails. In the case of Curtis v. Hubbard, cited above, the outer door of a dwelling- house being latched merely, the sheriff entered it, contrary to the known will • of the owner, and levied upon his goods therein by virtue of afi.fa. This was held illegal, though the owner was not in the house at the time. The levy gave the sheriff no right to remove the goods ; and even a guest in the house might law- fully resist the sheriff's attempt to re- move goods thus seized, using no more force than was necessai-y. Recent Eng- lish cases hold, however, that an officer may, in the execution of civil process, enter a house by lifting the latch of a door not otherwise fastened, on the ground that entry through the door is the usual mode of access, and that a VOL. I. 26 license from the occupier to any one to enter who has lawful business may be implied from his leaving the door un- fastened. As entry through a window is not the usual mode of entry, no such license can be implied from leaving the window unfastened. Nash v. Lucas, L. R.2Q. B. 593. When admission has been lawfully obtained, a sheriff may break open inner doors, if necessary, in order to execute his process ; or may break the outward door outwardly to take away goods on which he has levied, doing no unnec- essary damage; or may break in the outer door to rescue his bailiffs who have entered lawfully, and are dis- turbed in their execution ; or if, having peaceably entered, before he can execute his writ, he is forcibly expelled, and the door fastened against him. Dona clandestina sunt semper sus- piciosa. Clandestine gifts are always to be regarded with suspicion. This maxim applies, in some measure, to all secret conveyances of property, as well as to what are strictly termed gifts ; al- though it has peculiar force where want of valuable consideration and conceal- ment of the transfer exist together. From such circumstances, suspicions of the good faith of the transaction as to third parties, or of its validity as a gift between the parties, where a donation is alleged, will naturally arise. DONATIO. A gift. A transfer of property, either lands or chattels, and including both title and possession, made without consideration, and accepted by the donee. This is the meaning attached to the term in the civil law, and in the old English law, as well as in several modern phrases. But the word and its English equivalent " gift " have in mod- ern times been limited in their applioa^ tion to real estate, to the conveyance of estates tail. Several kinds of donatio are enumerated: donatio simplex et pura, — a simple and pure gift, — one made without any compulsion or considera- tion ; donatio conditionalis, — a condi- tional gift, — one subject to some con- dition or qualification; donatio ahsoluta et larga, — an absolute and unlimited gift, such as an estate in fee-simple; donatio stricta et coarctura, — a restricted DONATIO 402 DORMANT and limited gift, such as an estate in fee-tail. Others are defined below. Donatio inter vivos. A gift be- tween the living. The ordinary kind of gift by one person to another, when the giver is not in any immediate appre- hension of death; designated as inter vivos, by way of distinction from the donatio mortis causa, q. v. Donatio mortis causa. A gift in expectation of death. A gift of per- sonal property, made by a person in contemplation of his own death, by delivery of the property to another to keep as his own in case of the donor's decease. The subject of such a gift can be personal property only; and, to con- stitute a valid donatio mortis causa, it must be made in actual peril of the death, and to take effect only in case of the death of the donor ; and there must be an actual delivery of the property to or for the use of the donee, if such de- livery can be made, according to the manner in which it is capable of being delivered. The gift is conditional, de- pendent on the contingency of expected death, and is revocable during the life of the donor, therein differing from a gift inter vinos. It differs from a legacy in that it does not require any proceed- ing in the court of probate, or any as- sent or action on the part of the executor, to perfect the title of the donee. It has been held that the phrase does not include lands. White v. Wager, 32 Barh. 250, 260. The cases are not agreed whether an executory obligation, as a bond or note, can be the subject of a donatio mortis causa. See U. S. Digest, tit. Gift. Donatio propter nuptias. A gift on account of marriage. In the civil law, this phrase designated the provision made by the husband as the counterpart of the dowry or marriage portion, termed dos (q. v.), brought him by his wife. The donatio propter nuptias was given by the husband, partly by way of join- ture for the wife in case she should sur- vive him, and partly as security for the return of her dos to her heirs in case of her decease leaving him surviving. The husband had the management and ad- ministration of both the wife's dos and his own donatio during the existence of the marriage, but had no power to alien- ate either ; and, on the death of the wife, the donatio propter nuptias reverted to the husband, and the dos returned to the heirs of the wife, unless the husband was, by the marriage contract, entitled to retain it. Hence the donatio was also termed a mutual gift. It was introduced by the later Roman emperors, and was at first termed donatio ante nuptias, — a gift before marriage, — it being made upon condition that it should take effect upon the celebration of the marriage, and not allowed after marriage. Justinian al- lowed it to be made after as well as before maiTiage, and changed its name to donatio propter nuptias. DONATION. Usually means a gift; but where the electors of a town resolved, at town meeting, to " donate " one thousand dollars to the plaintiffs for the use of a bridge over a river at a certain point in the town, pro- vided the plaintiffs would, by a day named, erect a substantial bridge over the river at that point, it was held that both electors and plaintiffs must have understood it to mean an agreement to give for a consider- ation. Goodwin ». Beloit, 21 Wis. 636. A statute authority to a college, to re- ceive donations, may empower them to take subscriptions, such as a bond for the future payment of money to the college. Donation does not necessarily import a gift executed. Hooker v. Wittenberg College, 2 Cm. 353. DONATIVE. A benefice merely given and disposed of by the patron to a man, without either presentation to or institution by the ordinary, or induction by his order. Donatives are so termed, because they be- gan only by the foundation and erection of the donor. Jacob. DONOR; DONEE. These words have technical significations in real- property law; meaning, respectively, one who gives and one who receives lands in tail (Termes de la Ley), and, in more recent usage, one who confers and one who is invested with a power. 4 Kent Com. 316. They are also used at the present day to designate the giver and recipient of personal property. Donor is he who gives lands or tene- ments to another in tail, &c. ; and the per- son to whom given is the donee. Jacob. DORMANT. Sleeping; in abeyance; inactive; suspended. Dormant execution. An execution delivered to the sheriff with direction to levy only, not to sell at once. An exe- cution which has thus become dormant DOS 403 DOUBLE is liable to be postponed to subsequent executions, under which the same prop- erty may be levied on and sold, and the proceeds applied upon the judgments on ■which such subsequent executions issued. Storm u. Woods, llJohns. 110; Kimball V. Munger, 2 Hill, 364. Bormant judgment. A judgment which, without having become extin- guished or satisfied, has been allowed to lie without attempt to enforce it, until the time allowed for issuing execution as of course has expired. Dormant partner. A silent partner. A general partner, whose name does not appear in the style of the firm, and who takes no part in conducting the business. A dormant partner should be distin- guished from a concealed or secret part- ner, for his membership may be avowed and well known ; yet the tei-m is often used as equivalent to secret partner. He is also to be distinguished from a special partner, under the laws of recent introduction authorizing limited part- nerships; for he may be liable to third persons as a full partner, though per- haps not such as towards his fellows. In strict legal acceptation, every partner is considered dormant, unless his name is mentioned in the firm, or embraced under some such general term as " & Co." Mitchell ■/, Dall, 2 Bar. ^ G. 159. To constitute one a dormant partner witliin the rule which excuses the plaintiff from joining a dormant partner as defend- ant, in an action upon a contract of his firm, it is not necessary that he should wholly abstain from participation in the business, or be universally unknown as connected with it. Nor does the term imply a studied concealment of the fact of partnership. A plaintiff is not bound to join with the ostensible members of the firm one whose connection with it would not be naturally inferred from their mode of business, and was not generally known. North V. Blass, 30 N. Y. 374. A dormant partner is one who takes no part in the business, and whose connection with the business is unknown. Both se- crecy and inactivity are implied by the word. National Bank v. Thomas, 47 N. Y. 15. DOS. Dowry. A marriage portion. The proper meaning of the word un- doubtedly is a sum of money given to a husband to aid him in sustaining the burdens of marriage; or the portion given with a woman to her husband in marriage. But it is often used, especially in older English books, as a term interchange- able with " dower," or the portion which a widow has in the estate of her husband after his death; also, as the portion bestowed upon the wife at her marriage, by the husband. Dos, in the Roman law, was the dowry or tocher brought by the wife to the hus- band on the occa-sion of the marriage. By that law the dos returned to the wife on the dissolution of the marriage, but during the subsistence of the relation, the rents or profits of the dos went to the husband. Bell. Dos de dote peti non debet. Dower of dower ought not to be demanded. Doa ratlouabilis. A reasonable mar- riage portion; sometimes a reasonable dower. See Dos. Dote assignanda. A writ which lay for a widow, when it was judicially ascer- tained that a tenant to the king was seised' of tenements in fee or fee tail at the day of his death, and tliat he held of the king in chief. In such case the widow might come into chancery and then make oatli that she would not marry without the king's leave, and then she might have this writ. These widows were called the king's widows. Jacob; Solthouse. Dote iinde nihil habet. A writ of dower which lay for the widow against a tenant who had bought land of her hus- band, in his lifetime, whereof he was seised, solely, in fee simple or fee tail, in such a way that the issue of the two might have inherited. Jacob; HoUhouse. DOUBLE. This vernacular word occurs in a somewhat technical sense in several phrases. Double costs. By statute, in cer- tain actions, in England, double costs were allowed; but the phrase meant regular common costs and half as much again. The costs were not literally doubled. By Stat. 5 & 6 Vict. ch. 97, the right to double costs was taken away ; but the statute does not seem to vary the meaning of the phrase. It is applied to taxes to signify the objec- tion which exists to levying taxes twice on the same property by the same government. Double taxation is deemed, as a general rule, oppressive and unjust; though it has been said that if it is not prohibited by the consti- tution the courts cannot relieve against it when clearly enacted ; the question is for the legislature. Constitutional prohibitions are comparatively recent, and their operation is not settled. It seems not to be considered double taxation for two states, or a state and the United States, to tax the same property ; nor to tax distinct interests, e.g., mortgagee and owner of redemption ; corporation and shareholders. Burr. Tax. 57 ; Id, 170. DOWER 404 DOWRY In New Ytek and South Carolina, the English rule is adopted, by which com- mon costs are first taxed, and fifty per cent added. Stephens v. Ligon, Harp. 439; Patchin v. Parkhurst, 9 Wend. US. But, in Pennsylvania, contrary to the English rule, double and treble costs are held to mean twice and thrice the single costs. Welch v. Anthony, 16 Pa. St. 254; Shoemaker v. Nesbit, 2 Rawle, 201. Double damages. Upon some rights of action, or in favor of some parties, statutes allow recovery of double dam- ages. In these cases, the jury are to find the just or proper damages, accord- ing to the merits of the case, and irre- spective of the statute; and the court is to render judgment for the increase. Double damages means twice the dam- ages found by the jury; the verdict is literally doubled. Double insurance, means a second or repeated insurance upon the same property or interest, against the same perils, and in favor of the same person ; and is to be distinguished from reinsur- ance, which is an insurance effected by an underwi'iter for his indemnity. Double pleading. This is not allowed either in the declaration or subsequent pleadings. Its meaning with respect to the former is, that the declaration must not, in support of a single demand, allege several distinct matters, by any one of which that demand is sufficiently supported. With respect to the subsequent pleadings, the meaning is, that none of them is to contain several distinct answers to that which pre- ceded it ; and the reason of the rule in each case is, that such pleading tends to several issues in respect of a single claim. Wharton. Double voucher, was where a common recovery was effected by first conveying an estate of freehold to an indifferent person, against whom the prcedpe was brought, who then "vouched" the tenant in tail, and he the common vouchee. (2 Bl. Com. 359 ; 1 Steph. Com. 569, 570.) Mozley §■ W. DOWER. A provision made by law for the maintenance of a widow; con- sisting, as the term is understood at the common law and generally throughout the United States, of the enjoyment for life of one-third part of aU the lands and tenements in fee-sijnple or fee-tail of which her husband was seised at any time during the coverture, and of which any issue she might have had might by possibility have been heir. Dowress : a widow entitled to dower ; a tenant in dower. Besides dower as thus defined, four kinds were formerly known in England. Jacob -describes them substantially as follows : Dower by custom, which is that part of the husband's estate to which the widow is entitled after the death of her husband, by the custom of any manor or place, so long as she lives sole and chaste; and this may be more than a third part, or less ; and in some manors the widow shall have the whole during her life. Dower ad ostium ecclesios. This was given by the husband himself immedi- . ately after the marriage, who then named such particular lands of which his wife should be endowed. Dower ex assensu patris. This was only a species of the dower ad ostium ec- clesios ; being of certain lands named by a son who was the husband, but the property of the father, and with his con- sent. Dower de la plus belle, which was where the wife was endowed with the fairest part of her husband's estate. The three last-named kinds have ceased to exist in England since the dower act, Stat. 3 & 4 Wm. IV. ch. 105. Dower, in modern use, is and should be distinguished from dowry. The former is a provision for a widow on her husband's death ; the latter is a bride's portion on her marriage. See Dos. The word dower, both technically and in popular acceptation, has reference to real estate exclusively. Dow v. Dow, 36 Me. 211. It cannot be applied to personal prop- erty. A statute that the widow's dower shall not be deemed effected by any will of her husband does not embarrass his dispos- ing of his personal estate by will. Matter of Davis, 36 Iowa, 24. Dower may stand so connected in a will as to mean the lawful third of the personal as well as of the real estate. Adamson v. Ayres, 5 N. J. Eg. 849. Where one devised to his wife " her full and reasonable dower in all his estate, ac- cording to the laws of this state," it was held that the term dower must be taken in its legal acceptation, and be limited exclu- sively to the realty. Brackett v. Leighton, 7 Me. 383. DOWRY. Formerly applied to mean that which a woman brings to her husband DRAFT 405 DRUNKARD in marriage ; this is now called a, portion. This word is sometimes confounded with dower. Bouvier. Dowry, in the civil code of Louisiana, means the effects which the wife brings to the husband to support the expenses of the marriage; and the income of the dowry, although belonging to the husband, is in- tended to help him support the charges of the matrimony, such as the maintenance of the spouses, that of their children, &c. For that purpose the code preserves the income of the dotal property from being seised by creditors. Buard v. De Kussy, 6 Eob. {La.) Ill ; Gates v. Legendre, 10 Id. 74. By dowry, in the Louisiana civil code, is meant the effects which the wife brings to the husband to support the expenses of marriage. It is given to the husband, to be enjoyed by him so long as the marriage shall last, and the income of it belongs to him. He alone has the administration of it during marriage, a,nd his wife cannot de- prive him of it. The real estate settled as dowry is inalienable during marriage, un- less the marriage contract contains a stipu- lation to the contrary. De Young v. De Young, 6 La. Ann. 786. DRAFT. The word draft is nomen generalissimum, and includes all orders for the payment of money drawn by one per- son on another. Wildes v. Savage, 1 Story C. Ct. 22, 80. DRAIN. Has no technical legal mean- ing. Any hollow space in the ground, nat- ural or artificial, where water is collected and passes off, is a ditch or drain. Gold- thwait V. Inhabitants of East Bridgewater, 5 Gray, 61. DRAmATIC. a mere exhibition, spec- tacle, or scene is not a dramatic composi- tion within the meaning of the copyright laws. Martinetti v. Maguire, 1 Abb. U. S. 356. DRA'WBACK. A remission or re- payment upon the exportation of mer- chandise of duties which have been pre- viously paid upon it. A principaj application of the princi- ple of drawback in the United States duty laws is in respect to goods which, Vfhen brought into the country, have paid duties, but are re-exported for sale abroad; or to goods manufactured out of imported materials which paid duty, when such goods are exported for sale abroad. In such cases, the law aUows the exporter a drawback in cases and under regulations prescribed by Rev. Stat. tit. 34, ch. 9. A drawback is a device resorted to for enabling a commodity affected by taxes to be exported and sold in the foreign market on the same terms as if it had not been taxed at all. It differs in this from a bounty, that the latter enables a commod- ity to be sold abroad for less than its nat- ural cost, whereas a drawback enables it to be sold exactly at its natural cost. Wharton. DROIT. A French law term for a right, or for law in its aspect of the foundation of rights. It is equivalent to jus in the Roman law. The writ of right is called in the old books droit. Jacob, Droit of admiralty. A word ap- plied, in English law, to ships of the enemy taken by a subject in time of war without commission from the crown; also, to ships seized in port, on the breaking out of war. Any such prize would, by the effect of the prerogative, become an admiralty droit, or a right of the admiralty. Droit d'aubaine. A right or pre- rogative formerly claimed by the sover- eigns of some European counti-ies, by which all the property of a deceased for- eigner was confiscated to the use of the state, excluding his heirs and kin, whether claiming by inheritance or under a will. Droita civils. This phrase in French law denotes private rights, the exercise of which is independent of the status {quality) of citizen. Foreigners enjoy them ; and the extent of that enjoyment is determined by the principle of reciprocity. Conversely, foreigners may be sued on contracts made by them in France. Broion. Droit-droit. A double right; that is, the right of possession and the right of property. {Cowel; 2 Bl. Com. W9.) These two rights were, by the theory of our an- cient law, distinct ; and the above phrase was used to indicate the concurrence of both in one person, which concurrence was necessary to constitute a complete title to land. Mozley ^ W. Droitural, has been used to distinguish actions brought upon a writ of right, as distinguished from that other group of ac- tions called possessory, which were brought upon the fact of, or right to, the possession merely. Brown. DRUNKARD. He is a drunkard whose habit it is to get drunk ; wjiose eb- riety has become habitual. The terms " drunkard " and " habitual drunkard " mean the same thing. Commonwealth v. Whitney, 5 Gray, 85. Drunkenness, as used in ordinary stat- utes providing for the restraint or punish- ment of drunkards should be construed as meaning a condition induced by drink- ing an excessive quantity of intoxicating liquor, and not as including effects of in- haling ether or chloroform. A person who habitually uses chloroform to excess does not become subject to be treated as a com- DUBITANTE 406 DUE mon drunkard. Commonwealth v. ■WTutney, 11 Cush. 477. DUBITANTE. Doubting. Is af- fixed to the name of a judge, in the re- ports, to signify that he doubted the decision rendered. DUBITATUR. It is doubted. A word frequently used in the reports to indicate that a point is considered doubt- ful. The word query is used by modern reporters in their syllabi of cases in a somewhat similar sense. DUCES TECUM. That you bring with you. A term applied to certain writs by which a party required to ap- pear in court is also commanded to bring with him some piece of evidence or other thing to be produced to the court. The subpmna duces tecum (q. v.) is a familiar example. DUE. 1. Payable; owing and de- mandable; sometimes owing, simply. 2. CoiTect; lawful; regular; sufficient; as in the phrases due process of law; due service. Due is sometimes used to express the mere state of indebtment, and then is an equivalent to owed or owing ; sometimes to express the fact that the debt has become payable. Allen v. Patterson, 7 N. Y. 476 ; Soudder v. Scudder, 10 N. J. L. 340. When employed participially or adjec- tlvely after debt, without adding some verb or participle denoting future time, it is equivalent to " payable at the present time." Leggett V. Bank of Sing Sing, 25 Barb. 326. I A loss becomes " due " when the property insured is destroyed, or, at furthest, when the requisite proofs of loss are furnished. Allen V. Hudson Eiver Mut. Ins Co., 19 Barb. 442. A provision in the articles of a banking association that " no shares shall be trans- ferable unless the shareholder shall pre- viously discharge all debts due by him to the association," includes not only debts which have matured and are already pay- able, but also liabilities not yet matured. Leggett V. Bank of Sing Sing, 24 N. Y. 283. Due, in a provision in an attachment law requiring proof that the indebtedness in suit is Sue, means that the day when pay- ment ouglit to be made has arrived. . An affidavit that the defendant " is indebted," &c., is insuflScient to show this. Bowen v. Slocum, 17 Wis. 181. A note is not a debt justly due, under Mass. Rev. Stat. ch. 90, § 83, until assented to by the promisee. Baird v. Williams, 19 Pick. 381. The word due in a stipulation in a chat- tel mortgage, providing for insurance for the mortgagee's benefit, in a sum equal to the full amount due on the mortgage. should be construed to be synonymous with owing, and to contemplate insurance to the extent of the amount remaining unpaid. Fowler v. Hoffman, 31 Mkh. 215. A clause in a deed of assignment for benefit of creditors, providing for payment to the trustee of " the several and respec- tive debts, notes, bonds, obligations, and sums of money due, or to grow due," from the assignor, must be construed to cover only existing liabilities, whether matured or to mature ; and does not vitiate the as- signment. Van Hook v. Walton, 28 Tex. 59. An assignment of choses in action to a creditor " for the payment of my indebted- ness to him due and to become due," may be construed to include, as one of the debts to be paid, the contingent liability of the creditor on a note indorsed by him for the debtor, not due at the time of the assign- ment, but subsequently paid by the cred- itor as indorser. Kellogg v. Barber, 14 Barb. 11. A stipulation in a mortgage, reserving all due rights under a mortgage and decree of foreclosure, means that which law or justice requires to be done. Due rights are just rights ; legal rights. The plain mean- ing of the clause is, that, if the payments are not made as stipulated, the decree is to stand in full force ; all rights under it are to remain unimpaired; and the whole mort- gage debt, as secured by the decree, to re- main due and payable. Ryerson v. Boor- man, 8 N. J. Eq. 701. Due care. This term as usually under- stood in cases where the gist of the action is the defendant's negligence, implies not only that a party has not been negligent or careless, but that he has been guilty of no violation of law in relation to the subject- matter or transaction which constitutes the cause of action. Evidence that a party is guilty of a violation of law supports the issue of a want of proper care ; nor can it be doubted that in these and similar actions the averment in the declaration of the use of due care, and the denial of it in the an- swer, properly and distinctly put in issue the legality of the conduct of the party as contributing to the accident or injury which forms the groundwork of the action. No specific averment of the particular unlaw- ful act which caused or contributed to produce the result complained of should, in such cases, be deemed necessary. Jones V. Andover, 10 Allen, 18; see also Butter- field V. Western R. E. Corp., Id. 632. Due course of law ; Due process of law. These phrases in the constitution do not mean the general body of the law, com- mon and statute, as it was at the time the constitution took effect ; for that would seem to deny the right of the legislature to amend or repeal the law. They refer to certain fundamental rights, which that system of jurisprudence, of wliich ours is a derivative, has always recognized. Brown v. Levee Commissioners, 50 Miss. 468. The words due process of law, or the law DUEL 407 DUM of the land, were intended to secure the in- dividual from the arbitrary exereise of the powers of government, unrestrained by the established principles of private rights and distributive justice. Bank of Columbia v. Oakeley, 4 Wheat. 235. Due process of law, as used in the con- stitution, cannot mean less than a prose- cution or suit ' instituted and conducted according to the prescribed forms and so- lemnities for ascertaining guilt, or deter- mining the title to property. Embury v. Conner, 3 N. Y. 511, 517 ; Taylor w. Porter, 4 Hill, 140; Burch v. Newbury, 10 N. Y. 374, 397. The phrase means, a trial had according to the course of the common law, and not by mere legislation. Taylor v. Porter, 4 HiU, 140: see also Wynehamer v. Peo- ple, 13 N. Y. 378. It requires more than a special act authorizing the deprivation. Clark V. Mitchell, 64 Mo. 564. It means, in the due course of legal pro- ceedings, according to those forms which have been established for the protection of private rights. Westervelt v. Gregg, 12 N. r. 209. It means the same as " law of the land." Sears v. Cottrell, 5 Mick. 251; State v. Staten, 6 Coldw. 233. It means, in each particular case, such an exertion of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. Exp. Ah Pook, 49 Cal. 403. The phrase due course of law, when ap- plied to penal offences, does not necessa- rily imply a trial by jury, but rather means a proceeding carried on according to the law of the land, either with or without a trial by jury. Reagh v. Spann, 3 Stew. 100. If the condition of a guaranty is that the creditor shall proceed by due course of law, for the collection of the debt, it is enough that he prosecutes all ordinary le- gal measures, with good faith and reason- able 'diligence, in point of time ; the loss of a term does not, of necessity, discharge the guarantor. Thomas v. Woods, 4 Cow. 173. The expression means no more than a timely proceeding to judgment and execu- tion. Backus V. Shipherd, 11 Wend. 629. A discharge from the prison rules, under the insolvent act of a state, although ob- tained by fraud, is a discharge in due course of law ; and upon such discharge no action can be sustained for an escape, against the sheriff, nor upon the prison-bounds bond. Simms v. Slacum, 3 Cranch, 300. duel", a combat with deadlyVeap- ons, fought between two persons by agreement, upon a, previous quarrel. Duel, in ancient law, is a fight between persons in a doubtful case for the trial of the truth. But this kind of duel is disused, and what we now call a duel is a fighting between two, upon some quarrel precedent. Jacob. The offence of duelling consists in the invitation to fight, and the misdemeanor is complete by the delivery of the challenge. State V. Taylor, 1 Treadw. Const. 107. Any agreement to fight with loaded pis- tols, and actually fighting in pursuance, constitutes a duel, under the act of South Carolina ; and it does not depend upon the time when the agreement was made, but upon the fact of the agreement. Herriott V. State, 1 McMuU. 126. DUKE. In English law, is a title of nobility, ranking immediately next to the Prince of Wales. It is only a title of dignity: conferring it does not give any domain, territory, or jurisdictiou over the place whence the title is taken. Duchess : the consort of a duke. Whar- '""• /5 «^ _ i ru C4 rj 7 / ; i; U'C^t. United States, 3 Ct. of CI. 260. The police of the capitol at Washington have heea held to be "civil officers" or "employes," within the meaning of the joint resolution of congress of Feb. 22, 1867 (14 Stat, at L. 569), giving increased compensation to certain civil employes of the government at Washington. Mallory V. United States, 3 Ct. of CI. 257. EMPLOYED. To be employed in any thing, means not only the act of doing it, but also to be engaged to do it ; to be under contract or orders to do it. United States V. Morris, 14 Pet. 464, 475; United States V. The Catherine, 2 Paine, 721, 746. A statute that no person shall be em- ployed as a teacher, unless he has received a certificate, is not infringed because at the time when the teacher became engaged he had no certificate, if he subsequently, and before entering upon the discharge of his duties as teacher, procured the requisite EMPTOR 425 ENDOW certificate. The teacher is not "em- ployed " within the meaning and intent of tliis proTision, until he engages in the dis- charge of his duties as teacher. The mis- chief intended to be guarded against was the teacliing of a school by an incompetent person, and not the making of the contract by an incompeten^peraon. SgjBjbol Di^tric^ "' " ~^ims.,Jp.^io St. ' toremit qnamralrKiKS^'oteit, venditor vendlt quam maxime po- test. The buyer purchases for the low- est price he can, the seller sells for the highest price he can. The law recog- nizes the right of both the buyer and seller to make each for himself the best bargain he can, by fair means, and does not interfere where no imposition is practised. The maxim is also cited as sustaining the rule that a person who sells property of another, acting as the agent or on behalf of such other, cannot properly become himself the purchaser. EN. In. The French equivalent of the EugUsh and Latin preposition in, used as a component of many words and phrases of frequent occurrence in law ; as to which, in their English or Latin form, see In. Phrases which are com- monly or exclusively found in the French form are the following: lin auter droit. In another's right. See AUTBR DROIT. En demeure. In default. Used in Louisiana of a debtor who fails to pay on demand according to the terms of his obligation. See Bryan v. Cox, 3 Mart. (La.) N. s. 574. En gros. In gross. Total; by whole- sale. En ventre sa m%re. In its mother's womb. A term applied to a child be- fore birth. For some purposes — as of inheritance — a child yet en ventre sa mere is considered as in being. ENABLING ACT, or STATUTE. An enactment conferring power to do something which, before it was passed, the persons afiected could not do, is often called an enabling statute. ENAJENACION. In a conveyance under Mexican law, the words enajenacion . . . del terreno, without any limiting term, convey the fee of the premises, and not a usufruct therein. Mull ord v. Tie Franc, 26 Cai. 88. ENCLOSURE. Is not so broad a term as close. Porter v. Aldrich, 39 Vt. 326. Enclosure, in a statute limiting one's right to distrain beasts to those doing dam- age within his enclosure, means a tract of land surrounded by an actual lence, to- gether with such fence, and does not in- clude that part of a public highway of which the fee belongs to the owner of such adjoining enclosure. Taylor v. Welbey, 36 Wis. 42. What fence surrounding is necessary to constitute such an enclosure that " any per- son may impound any beast found in his enclosure doing damage," under Vt. Gen. Stat. ch. 100, § 4, see Keith v. Bradford, 89 R34. ENCROACH. To intrude upon, oc^ cupy, or use the lands or authority of another, as if by a gradual or partial as- sumption of right on the part of a neigh- bor. Compare Accroach. Encroachment: an unlawful gaining upon the rights or possessions of another. Cowel. En declaration de simulation. This is a form of action derived from the civil law, and in use in Louisiana. Its object is to cause to be judicially declared simulated acts, the appearance of which is contrary to truth. It should be distinguished from the revocatory action, the object of which is to avoid serious but fraudulent contracts. Erwin v. Bank of Kentucky, 5 La. Arm. 1. The action en declaration de simulatitm is an action to have a contract declared judi- cially a simulation and a nullity, to remove a cloud from the title, and to bring back, for any legal purpose, the thing sold to the estate of the true owner. Edwards v. Bal- lard, 20 La. Ann. 169. ENDOW. 1. To confer a right of dower. Endowing, or endowment: the assuring or bestowing dower upon a woman. 2. To make permanent provision for the support of a corporation or institu- tion, by appropriating lands or funds as a source of regular and reliable income. Endowment, iu this connection, often signifies the fund or property thus be- stowed. Endowment is wealth applied to any per- son or use. The assuring dower to a wo- man ; the setting forth a sufficient portion for a vicar towards his perpetual mainten- ance, when the benefice is appropriated. Cowel. It means the bestowing or assuring of dower on a woman. It is sometimes used metaphorically for the settling a provision upon a parson, or building of a church or chapel ; and the severing a sufficient por- tion of tithes, &c., for a vicar, towards his perpetual maintenance, when the benefice is appropriated. Jacob. The term is commonly applied to any provision for the officiating minister of a church, the provision usually consisting in ENEMY 426 ENFRANCHISE the setting apart of a portion of lands for his maintenance. Brown. Endowment, according to common right, is where the widow has assigned to her one- third out of each tract or parcel of the land. Where, by her consent, the whole of one or more of the several tracts or parcels is assigned to her, in lieu of one-third of each tract, this is called endowment against common right. French v. Pratt, 27 Me. 381. The words " endowment " and " fund," in a statute exempting from taxation the real estate, the furniture and personal property, and the " endowment or fund " of religious and educational corporations, are ejusdem generis, and intended to comprehend a class of property different from the other two, not real estate or chattels. The difference between the words is, that fund is a general term, including the endowment, while en- dowment means that particular fund, or part of the fund, of the institution, be- stowed for its more permanent uses, and usually kept sacred for the purposes in- tended. The word endowment does not, in such an enactment, include real estate. State V. Lyon, 32 N. J. L. 360. Endowment does not necessarily mean that land and tithes must be annexed to the living, in exclusion of any other provision or means of support ; but a stipend, rents, emoluments, and advantages of any kind, given and secured to the minister or pastor of a church during the time he shall offici- ate as minister of such church, as a com- pensation for his services, is an endowment. Eunkel v. Winemiller, 4 Har. ^ M. 429, 451. Endowed schools. In England, certain schools having endowments are distinctively known as endowed schools ; and a series of acts of parliament regu- lating them are known as "the en- dowed schools acts." Mozley §• W. ENEMY. In public law, signifies either the nation which is at war with another, or a citizen or subject of such nation. It is sometimes applied where hostilities are in preparation only. And, in its application to individuals, it may mean a person in the service of a nation at war, though not its subject. Where a policy insured a vessel against perils by "enemies, pirates, and assailing thieves," and " all such losses which shall come to the damage of said steamer, ac- cording to the true intent and meaning of the policy," and the vessel was captured by an armed force acting under the authority of the so-called confederate states of Amer- ica, it was held that the loss was within the policy. Though the term enemies, when rigidly construed, means public ene- mies, so that the policy in strictness would hardly cover the loss, yet as indemnity is the object of insurance, and as it is a rule in marine policies that where the loss is of a like nature with the specified peril, or substantially within its meaning, the under- writers are liable, the loss should be deemed covered by the peril of " enemies " insured against. Monongahela Ins. Co. v, Chester, 43 Pa. S(. 491. Indians at peace with the United States are in no received sense of the word an enemy, and cannot be judicially considered as embraced within it. 4 Op. Att.-Gen. 81. ENFEOFF. Is the verb correspond- ing to the noun feoffment (g. v.), and means to vest a freehold estate in lands, by means of feoffment. ENFORCE. Power conferred by stat- ute on state's attorneys to "enforce the collection of fines," &c., implies a power to receive the fine, or the amount of any judg- ment rendered for a fine, and to give a re- ceipt which will discharge the party ; and the attorney may authorize the payment of the money into a bank or to a County treas- urer, for his use, instead of receiving it directly. People v. Christerson, 59 ill. 157. ENFRANCHISE. To make free ' of a city; to confer membership in a public corporation, involving political privi- leges and rights. To give political ca- pacity and power, such as is exercised by members of the community in distinc- tion from officers. Enfranchisement: the gift of political freedom and capacity. The term was formerly connected with those features of the political sys- tem of England in early times, under which any right of an individual to vote upon election of officers or administra- tion of public affairs was a franchise aris- ing out of and dependent on his member- ship of some public corporation. It is now often used to mean a grant of such rights, without any implication of cor- porate membership. Enfranchise is to make free, or incorpo- rate a man into any society, &c. Enfranchisement takes place when a per- son is incorporated into any society or body politic ; and it signifies the act of incorpo- rating. He that by charter is made a deni- zen or freeman of England, is said to be enfranchised, and let into the general liber- ties of the subjects of the kingdom; and he who is made a citizen of London, or other city, or free burgess of any town cor- porate, as he is made partaker of those lib- erties that appertain to the corporation, is, in the common sense of the word, a person enfranchised. A viUern was said to be en- franchised, when he was made free by his lord, and rendered capable of the benefits belonging to freemen. Enfranchisement is a word which is now used principally in three different senses : Of the manumission of slaves by their ENGAGE 427 ENLIST masters, or by an act of the supreme legis- lature within whose jurisdiction they are. Of giving to a borough or other constit- uency a right to return a member or mem- bers to parliament Of the conversion of copyhold into free- hold, giving the lord of the manor a com- pensation in money, secured, if necessary, by a mortgage, in lieu of his manorial rights. Mozley ^ W. I!nfr£incliisement of copyhold, sig- nifies the conversion of a copyhold es- tate into a freehold. The mode of enfranchisement is regu- lated at the present day by Stat. 4 & 5 Vict. ch. 35, and the copyhold acts, 1852 and 1858, under which acts great facilities are afforded for the commutation of the lord's customary rights ; moreover, enfran- chisement is rendered compulsory at the wish either of the lord or of the copyhold tenant, with this difference in the two cases, namely, that if the compulsory enfranchise- ment is made at the wish of the tenant, the commutation of the lord's rights consists in a gross sum of money, either paid at the time of the completion of the enfranchise- ment, or secured by a mortgage of the lands ; whereas, when the compulsory en- franchisement is made at the wish of the lord, the commutation of his rights consists in an annual rent-charge issuing out of the lands enfranchised. The eSect of enfran- chisement is, to discharge the lands of all customary incidents, e.g. the custom of de- scent to the customary heir, and to annex to them all the incidents of freehold lands. Broum. ENGAGE. One definition is, " to bind by appointment or contract." In common parlance, it is often used as synonymous with promise. " I engage to do or omit to do an act," is nothing more than a promise to do or omit it. Rue v. Eue, 21 N. J, L. 369, 879. ENGRAVE. Does not include the process of reproducing pictures by means of photography. Wood v. Abbott, 5 Blatchf. 325. ENGROSS. 1. To wi-ite in a gross or large, fair hand; to transcribe for permanent use. Engrosser: a scribe who copies documents in permanent form. Engrossing: the act or business of making formal permanent copies. The word, in this sense, is most fre- quently applied to deeds and to statutes, particularly the latter, which at one stage of legislative proceedings are "passed to be engrossed." 2. Engrossing is also the name of an ofEenoe at common law, consisting in the practice of buying up large quantities of provisions with intent to enhance the market price by creating a scarcity, and thereby to sell at a profit. The modern law scarcely recognizes this as a crime ; though employment by speculators of fraudulent means to en- hance the price of merchandise which they hold in large quantities may be punishable. ENITIA PARS. The eldest's part. A term apj)lied in English law to the share which, upon a voluntary partMon among coparceners, the eldest took by her right of first choice. ENJOIN. Is used in two senses ap- ( parently contradictory. Most frequently it signifies to prohibit by decree of a"" court of equity. See Injunction. Sometimes it means to command, as in such expressions as to enjoin silence. ENLARGE. Has some technical uses, but they do not involve any meaning of the word itself different from the ver- nacular sense, but are instances of mean- ing dependent on connection. To en- large an order or rule of court is to ex- tend or increase the time for complying with it. To enlarge an estate is to in- crease the tenant's interest, as where the tenant in remainder conveys to the ten- ant of the first estate, thus increasing his estate to a fee. To enlarge a prisoner is to set him at large or at liberty. An enlarging statute is one which extends a right or remedy given by the common law. Enlarge is commonly used in connec- tion with rules calling upon either party to an action or suit to do a certain thing by a specified day; the judges in such a case will, on sufficient grounds being shown for so doing, enlarge the time originally speci- fied for doing the act, in which case the rule is said to be enlarged, meaning that the time specified in it has been enlarged, i.e. extended. Brown. ENLIST. The words "enlist" and " enlistment," in law, as in common usage, may signify either the complete fact of en- tering into the military service, or the first step taken by the recruit towards that end. When used in the former sense, as in stat- utes conferring a right to compel the mili- tary service of enlisted men, the enlistment is not deemed completed imtil the man has been mustered into the service. Tyler v. Pomeroy, 8 AUen, 480. Enlisted applies to a drafted man as well as a volunteer whose name is duly entered on the military rolls. Sheffield v. Otis, 107 Mass. 282. A seaman who has passed his examina- ENORMIA 428 ENTIEETY tion at the naral rendezvous only, and has not yet been examined and passed on the receiving ship, is not enlisted witliin the meaning of section 11 of the act of March 2, 1855 (10 Stat, at L. 628), providing for the punishment of any person who shall entice any seaman or, &c., who may have enlisted into the naval service, to desert. United States v. Thompson, 2 Sprague, 103. Enlistment does not include the entry of a person into the military service under a commission as an oificer. Hilliard v. Stew- artstown, 48 N. H. 280. ENORMIA. Wrongs; unlawful or ■wrongful acts. See Aha enormia. ENROLL. To enter upon rolls of court, as to enroll a decree; to record; to register. Enrolment: recording or registration of documents. Enrolment of vessels. Under the United States laws regulating merchant shipping, vessels engaged in the foreign trade are registered, and those engaged in the coasting and home trade are en- rolled; and the words "register" and "enrolment" are used to distinguish the certificates granted to those two classes of vessels. Enrolment applies only to vessels employed in domestic commerce, — in voyages along the coast, or upon inland waters. The subject is regulated by Rev. Stat. tit. 50. See The Mohawk, 3 Wall. 566. ENS LEGIS. A being created by law; an artificial person. Applied to corporations, considered as deriving their existence entirely from the law. ENTAIL, V. To restrict the inheri- tance of lands to a particular class of issue ; to create an estate of inheritance limited to a particular class of heirs. Entail, n. : an estate in fee limited to a particular class of issue ; also termed an estate in tail. See Fee Tail. Entail, in legal treatises, is used to signify an estate tail, especially with reference to the restraint which such an estate imposes upon its owner, or, in other words, the points wherein such an estate differs from an estate in fee-simple. And this is often its popular sense ; but sometimes it is, in popular language, used differently, so as to signify a succession of life-estates, as when it is said that " an entail ends with A," meaning that A is the first person who is entitled to bar or cut off the entail, being in law the first tenant in tail. Mozley ^ W. ENTER. See Entry. ENTICE. The enticement to travel and find new homes, which is held out by a children's aid society, being necessary to the conduct of the society, and sanctioned by the statute incorporating it, is not an unlawful enticement or solicitation. The words " entice," " solicit," " persuade," or " procure," as used in the pleadings in an action, and acted upon by the courts, have been well defined : they import an initial, active, and wrongful effort. There is, in- deed, a sense in which the operations of a children's aid society, with its means of lib- eral aid, the opportunities it offers to travel, to visit new scenes, and find new homes, — very seductive to the youthful imagination, — may amount to a solicitation; but the enticement or solicitation thus implied springs from the very nature of, and is in- cident to, the enterprise, has it« sanction in the act incorporating the society, is legiti- mate, and may fairly be contrasted with the wrongful enticement or solicitation, of which, either for correction or punishment, the courts take cognizance. Nash v. Doug- las, 12 Abb. Pr. N. s. 187. ENTIRE. Indivisible ; imbroken ; undivided ; whole. Entire contract. Where a contract consists of many parts, which may be con- sidered as parts of one whole, the contract is entire. When the parts may be consid- ered as so many distinct contracts, entered into at one time, and expressed in the same instrument, but not thereby made one con- tract, the contract is a separable contract. But if the consideration of the contract is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items. 2 Pars. Cont. 517. Entire day, signifies an undivided day, not parts of two days. An entire day must have a legal, fixed, precise time to begin, and a fixed, precise time to end. A day, in contemplation of law, comprises all the twenty-four hours, beginning and ending at twelve o'clock at night. Eobert- son V. State, 43 Ala. 326. Entire interest. Where a person in selUng his tract of land sells also his en- tire interest in all improvements upon public land adjacent thereto, this vests in the purchaser only a quitclaim of his in- terest in the improvements. McLeroy v. Duckworth, 13 La. Ann. 410. Entire use, benefit, &c. These words in the habendum of a trust-deed for the ben- efit of a married woman are equivalent to the words " sole use," or " sole and separate use," and consequently her husband takes nothing under such deed. Heathman v. Hall, 3 Ired. Eq. 414. ENTIRETY. In general, the whole. It is applied to estates in which the en- tire or sole possession is in one person, as distinguished from a joint or several possession by two or more persons ; in other words, tenants by entireties are seised per tout, and not also per my, ENTRY 429 ENTRY whereas joint tenants are seised et per my et per tout. The eSeots of such a tenancy are, that neither tenant can convey the whole of his estate without the other, and neither can sever with- out the other ; and, upon the death of either tenant, the other takes the whole under the original grant, and not, as in joint tenancy, by the new or independent title of survivorship. This species of estate arises, in particular, upon a convey- ance, where common-law rules obtain, to husband and wife as grantees. Each is deemed seised of the whole estate ; and a conveyance by the husband alone will be inoperative against the wife, in the event of her surviving. ENTRY. I. As AN Act relating TO Property. The act of passing into or upon. En- ter: to go or come into or upon. In legal use, the words enter and entry are applied, in this sense, chiefly to lands and buildings. 1. Entry upon lands, in general, means the actual taking possession of lands by going upon them. In a strict use of the terms, the entry for the purpose of tak- ing possession and the taking possession are distinct acts, but practically both are, in the ordinary legal use of the word, included in the meaning of entry. A right of entry is, by the common law, given to a person who has a right of possession, as a remedy by which he may peaceably assert his right, without the formality of a legal action ; and, once having peaceably entered and ob- tained the possession, he may retain it. Such a notorious act ' of ownership was always considered equivalent to a feudal investiture by the lord. The remedy by entry was allowed in all cases where the entry by the wrong-doer was unlawful. But where the original entry was lawful, and an apparent right of possession was thereby gained, the owner of the estate cannot retake the possession by mere entry : he must resort to his action. An entry upon lands in this sense also was necessary, at common law, before a valid sale of land could be made: the vendor must have lawfully entered, in order to make livery of seisin — actual delivery of possession — to the pur- chaser. This rule was intended to pre- vent the evils arising from the sale of pretended titles to land, and was based upon the same policy as the modern rule which declares void grants of lands which are at the time held adversely to the grantor. A similar entry was, 'in theory, necessary to sustain an action of ejectment; but this was, in practice, supplied by a fictitious entry, assumed as a fact to support the action. Entry is a remedy which the law affords to an injured party ousted of his lands by another person who has taken possession thereof without right. This remedy (which must in all cases be pursued peaceably) takes place in three only out of the five species of ouster, viz., abatement, intrusion, and disseisin; for as in these three cases the original entry of the wrong-doer is un- lawful, so the wrong may be remedied by the mere entry of the former possessor. But it is otherwise upon a discontinuance or deforcement, for in these latter two cases the former possessor cannot remedy the wrong by entry, but must do so by action, inasmuch as the original entry being in these cases lawful, and therefore conferring an apparent right of possession, the law will not suffer such apparent riglit to be overthrown by tlie mere act or entry of the claimant. Brown. An entry at common law is nothing more than an assertion of title by going on tlie land ; or, if that was hazardous, by making continual claim. Anciently, an actual en- try was required to be made and a lease executed on the land to sustain the action of ejectment; but now nothing of that kind is necessary : the entry and the lease, as well as the ouster, are Actions ; and noth- ing is required but that the lessor should have the right to enter. A proceeding pre- cisely analogous obtained in the civil law. Innerarity v. Mims, 1 Ala. 660. 2. In a broader sense, but one of less frequent use, to enter upon land signi- fies to go upon it for some particular purpose. The ownership of land is ex- clusive, and, in general, an entry there- on without leave of the owner is a tres- pass. But the law gives authority to enter upon the premises of another in many cases. Instances are, the right to enter upon another's land to abate a nuisance; the right of a proprietor of goods or chattels to enter and retake them from the land of another ; the right of a landlord to enter on the de- mised premises to make repairs, to demand rent, to distrain, &c. ; the right of a traveller to enter an inn. A like authority to enter for some particular purpose is often given by license. ENTRY 430 ENTRY 3. In criminal law, a violent actual entry into a house or upon land, as dis- tinguished from a peaceable entry, is termed a forcible entry. Such entry constitutes an offence against the pub- lic peace at common law ; and the term is frequently used to designate similar offences defined by statutory provisions. See Forcible Entry. 4. In criminal law, also, some act of entering into a dwelling-house or other building is essential to complete the offence of burglary, in addition to the breaking. For this purpose, the least entry with the whole or any part of the body, hand, or foot, or witli any instru- ment or weapon, introduced for the pur- pose of committing a felony, is sufficient to complete the crime. But while put- ting a finger or a pistol over a threshold or through a window may be an entry, making an opening with a bit or a crow- bar is not, even where the door or win- dow is penetrated, if these instruments are intended for breaking only. n. As A Matter of Record or Writing. The act of setting down, or causing to be set down, in writing; recording, or causing to be recorded, in due form. In a like sense, to enter signifies to set down in writing; to inscribe; to record; to cause to be put down in writing, or re- corded. 1. In popular use, enter means to set down in writing the particulars of a transaction in books of account or rec- ord; as the particulars of a sale of goods in a merchant's account-books. Original entries of this description are, in genei-al, admissible evidence of the transaction so recorded in the ordinary course of busi- ness. Different modes of keeping such accounts are distinguished, in the sci- ence of book-keeping, by the terms sin- gle entry and double entry. To enter a bill short Is when a banker, having received an undue bill from a cus- tomer, does not carry the amount to the credit of the latter, but notes down the re- ceipt of the bill in the customer's account, with the amount and the time when due. Whether, however, any given bill is to be regarded as "a short bill" (that is, not to be treated as cash) must depend not so much upon whether it has been " entered short" as upon the surroundhig circum- stances, and the general mode of dealing between the parties. {Eij). Sargeant,- 1 iJose, 153, 154 ; Grant on Bankers.) Mozhy 2. Under the customs laws of the United States, to enter imported goods is to submit a statement or description of such goods, with the original invoices, to the collector, or other officer desig- nated by law, for the purpose of esti- mating the duties to be paid on such goods, and procuring their withdrawal from the custom-house, for consumption, transportation, or storage in warehouse, &c. , as the case may be. The term is also used in the United States internal revenue acts to designate the making similar statements to the officers of in- ternal revenue. The manner of making such entries is regulated by the statutes. The word entry, in section 1 of the act of congress of 1863, prescribing forfeiture of goods attempted to be imported by any false entry, includes all the different kinds of entries known in the practice and regula- tions of the custom-house, — the entry for warehouse, the entry for consumption, with- drawal entry, entry for transportation, &c. If any owner of goods knowingly makes or attempts to make either of these entries by means of a false practice, the transaction is within the statute. The word entry means the entire transaction by which the im- porter obtains the entrance of his goods into the body of the merchandise of the country. Until the entire transaction be- tween him and the government is closed, by a withdrawal of, and payment of, the duties upon all the goods covered by the original paper called the " entry for warehouse," the entry contemplated by the statute is not completed ; and any false practice any- where, from beginning to end, may work a forfeiture. United States v. Baker, 5 Ben. 25. 3. Under the provisions of the United States statutes relating to the public lands, any person entitled to a right of pre-emption or of homestead in such lands is authorized to enter a limited quantity with the register of the land- office for the particular district. In these statutes the terms enter and entry designate the filing or inscribing upon the records of the land-office of the pro- ceedings in writing required, and not the actual going upon and taking pos- session of the land; although actual set- tlement and occupation is requisite to perfect the proceedings, and to obtain a patent for the land entered. 4. The proceeding of depositing for copyright, under the copyright laws of ENTRY 431 ENTRY the United States, the title or descrip- tion of a book or other article, is fre- quently termed entering for copyright; the statute, however, uses the words de- posit and record, rather than enter or entry, except that ■ the notice of the copyright required by law to be inserted in or inscribed upon every copyrighted book or other article is, in one form, " Entered, according to act of Congress, in," &o. 5. In legal procedure, enter is fre- quently applied to the putting a pro- ceeding on record in proper technical language and order. Originally, in the common-law practice, every step in an action was formally entered in the record; and an omission to enter even a continuance put an end to the proceed- ing. The judgment record was made up of the various entries in the course of the action, actual or formal, arranged in order. Books containing forms of the proceedings in various actions, as they appeared of record, were much re- lied on as precedents, and were com- monly called " books of entries." In modern practice, the formal entry in a particular record of the proceeding of each step in due course is not so strictly required; but the terms enter and entry are still applied to the fil- ing of a proceeding in writing, such as a, notice of appearance by a defendant, and, very generally, to the filing of the judgment roll as a record in the office of the court. Entry of appearance. The filing or entering of record, on the part of the defendant in a suit, a statement that he comes into court, or is ready to proceed in the action. But, besides a formal entry to this effect, almost any step or proceeding taken, from which it may be implied that the defendant submits him- self to the jurisdiction, is deemed, in practice, equivalent to a regular entry of appearance. See Appear. In the former English practice, the entry of appearance in a chancery euit was made by the defendant or his solicitor leaving with the clerk of records and writs a slip of paper, with words indicating that he entered an appearance at the suit of the plaintiff, the name and address of the solicitor being added. If the defendant failed to enter an appearance, the plaintiff might enter an ap- pearance for him. (Hunt Eq.) The form of entering an appearance in an action at common law was almost precisely similar. The memorandum of appearance required under the judicature act of 1875 is sub- stantially in the same form, with a state- ment appended that the defendant does, or does not, require a statement of the plain- tiff's complaint to be delivered to him. Mozky If W. The meaning of the phrase entry of an appearance must be interpreted by the course and practice of the particular court. Whatever is held in such court to be a sub- mission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance; and, further, when such sub- mission has been once made, it cannot be retracted. Cooley v. Lawrence, 5 Duer, 605. And see U, S. Dig. tit. Action. Entry of cause for tricil; or Entry on the roll. These phrases designated, in Eng- lish practice, the proceeding by a plaintiff in an action who had given notice of trial, depositing with the proper officer of the court the nisi prius record, with the panel of jurors annexed, and thus bringing the issue before the court for trial. Entry of judgment. Judgment is entered in an action by preparing a statement or history of the proceedings, with the pleadings and other necessary proceedings in writing (either the orig- inal documents or transcripts of them), forming what is usually termed the judg- ment roll, and depositing this roU as a record in the office of the court. In practice, the roll or record is usually prepared by the attoi-ney or solicitor of the successful party. See Judgment. As used in Ga. Code, § 2863, making a judgment dormant, if no entry be made thereon for seven years, the word entry means a statement, signed by the sheriff, and dated, that the execution is placed in his hands with orders to make the money. Hatcher v. Gammell, 49 Ga. 576. III. As A Remedy. The name writ of entry was ap- plied, in the old common-law practice, to a writ which lay to recover the pos- session of lands wrongfully withheld from the owner. It was a remedy of great antiquity in English law; was allowed in several forms, and long con- tinued to be the usual remedy for the recovery of the possession of lands. It is classed as a real action, and is alto- gether possessory in its nature, as it de- cides nothing with respect to the right of property, but only restores the de- mandant to that situation in which lie was, or by law ought to have been, before the dispossession. 3 Bl. Com. ENTRY 432 EODEM 180. In England, however, it -was su- perseded in practice by the action of ejectment, and was finally abolished, with other real actions, by Stat. 3 & 4 Wm. IV. ch. 27, § 36. A writ of entry was a writ made use of in a possessory action, directed to the sheriff, requiring him to command the tenant of the land to render the same to the demandant, hecause that he, the tenant, had not entry into the land in question, but by or after disseisin, intru- sion, or the like, made witliin the time limited by law for such actions ; or that in case of his refusal so to render the land, then to appear in court to show the reason of his refusal. It was usual to specify in the writ the degree or degrees within which the same was brought, in this manner : 1. If the writ was brought against the party himself who did the wrong, then it only charged the tenant himself with the injury ; 2. If the writ was brought against an alienee of the wrong-doer, or against the heir of the wrong-doer, then it was said to be in the first degree, and charged the tenant in this manner: that he, the ten- ant, had not entry, but by, i. e., through, per, the original wrong-doer who ahen- ated the land or from whom it descend- ed to him; 3. If the writ was brought against a tenant holding under a second alienation or descent, then it was said to be in the second degree, and charged the tenant in this manner : that he, the ten- ant, had not entry but by, i. e., through, per, a prior alienee, to whom., cui, the original wrong-doer demised the same; 4. If the writ was brought against a ten- ant holding under more than two aliena- tions or descents, i. «., after two degrees were past, it charged the tenant in this manner: that he, the tenant, had not entry unless ajier, post, or subsequent to the ouster or injury done by the original wrong-doer. Brown. If the action be brought by tenant in tail, or tenant for life, it is said that both in the writ and count the demandant may state generally, that he was seised as of freehold ; but it appears to be more regular to show the commencement of the particu- lar estate, both in the count and writ. If the action be brought on a disseisin done to the demandant's ancestor, the derivative title from that ancestor must be stated in the count; as the writ may be brought either in the per, the per and cui, or the post, the count must be framed accordingly. Eos- coe Real Act. 182 ; 12 Phila. Law Library, N. s. 128. If a writ of entry was brought against the party that did the wrong, it charged the tenant himself with the injury. . But if such wrong-doer had made any alienation of the land, or if it had descended to his heir, that circumstance it was necessary to allege in the writ. One such alienation or descent made the first degree, called the per, because the form was nan habuit ingres- sum nisi per GuUelmum, — he had not entry except through William, — &c. A second alienation or descent made the per and cui, because the form was non habuit ingressum nisi per liicardum, cui Gulielmus illud dimi- sit, — he had not entry except through Rich- ard, to whom William demised it, — &c. If more than two degrees were passed, the party complaining was barred of his writ of entry, and driven to his writ of right, — a long and final remedy, — to punish his neg- lect in not sooner putting in his claim. But the statute of Marlbridge, 52 Hen. III. ch. 29 (passed in 1267-68), extended the writ of entry beyond these degrees. In such case, it was called a writ of entry in the post, because the words were non habuit ingressum nisi post intrusionem quam Gulielmus in Ulud fecit, — he had not entry except after the intrusion which William made upon it. Mosley ^ W. Enumeratio unius est ezolusio alterius. The specification of one thing is the exclusion of a different thing. A maxim more generally expressed in the form, expressio unius est exclusio alterius, q. V. ENVOY. One sent; a public minis- ter of high grade, though not fully equal to an ambassador. Eodem ligamine quo ligatum est dissolvitur. By the same tie by which it is bound it is dissolved. An obliga- tion is extinguished in the same way as it is constituted. See the following maxim. Eodem modo quo quid constitui- tuT, eodem modo dissolvitur. In that manner in which any thing is con- stituted, in the same manner is it dis- solved. An obligation is extinguished in the same way as it is constituted. Thus, an obligation which has been verbally entered into may be dis- charged verbally; while an obligation constituted by writing under seal can only be discharged by an instrument of like solemnity. The maxim does not apply, of course, to an extinguishment by performance of an obligation ; nor is it to be considered' as laying down a rule excluding all other modes of discharg- ing an obligation, but merely as point- ing out a proper means of effecting the discharge of any obligation, correspond- ing to the means by which it was con- stituted. In the Roman law, this rule was more strictly applied than in mod- EQUALLY 433 EQUITABLE ern practice ; the same or corresponding words or acts being used in discharging any obligation which were used in cre- ating it. The maxim is sometimes ex- pressed in the form, eodem ligamine quo ligatum, est dissolvitur. To affect debts due by specialty would, perhaps, require a seal, on the principle, eodem modo quo .oritur, eodem modi) dissolvi- tur ; but short of that, an oral agreement, on good consideration, may modify or to- tally defeat a simple contract, accordingly as one or the other may appear to have been intended by the parties. Fellows v. Stevens, 24 Wend. 294. Equally to be divided. This phrase imports that each of the persons among whom the division is to be made is to take the same share. Henderson v. Womack, 6 Ired. Eq.AZT. It relates to the quality of the estate, and not to its limitation. It creates a tenancy in common. Jackson v. Luquere, 6 Cow. 221. A testator's direction to his wife to divide a certain residue " equally between her re- lations and mine," was held to be properly executed by a division in her will equally between her and his relatives ; namely, half to six of her relatives, and half to nineteen of his relatives. Young's Appeal, 83 Pa. St. 59. EQUITABLE. According to natural right or natural justice; that which is just and right in a particular case, as distinguished from the strict rule of a general and positive law. Also, in a more technical sense, that which can only be sustained, or made available or effective in a court of equity, or upon principles of equity jurisprudence. See Equity. The word occurs most fre- quently in the following phrases : Equitable assets. Assets of a de- ceased person, which cannot be reached by his creditors by proceedings at law, but which niay be made available through a court of equity- Equitable assets are all assets which are chargeable with the payment of debts or legacies in equity, and which do not fall under the description of legal assets. 1 Story Eq. Jur. § 552. Assets such as are recognized only in equity are termed equitable assets; and these, after satisfying all who have liens on any specific property, will be distributed among creditors of all grades, proportion- ably, J. e. without regard to legal priority ; all debts ranking equal, when conscien- tiously considered. Wliarton. Equitable assignment. Such an as- signment as gives the assignee a title which, though not cognizable at law, equity will recognize and protect. VOL I. 28 To make an equitable assignment there must be such an appropriation of the sub- ject-matter as to confer a complete and present right on the party intended to be provided for, even where the circumstances do not admit of its immediate exercise. A mere promise, though of the clearest and most solemn kind, to pay a debt out of a particular fund, is not an assignment of the fund, even in equity. If the holder of the fund retains control over it, such as power on his own account, to collect it or to re- voke the disposition promised, that is fatal to the transaction as an equitable assign- ment. Christmas v. Russell, 14 Wall. 69. Equitable conversion. A change in the nature of property by which, for certain purposes, real estate is consid- ered as personal, or personal estate as real, or transmissible and descendible as such. See Conversion. Equitable defence. The name aip- plied, in modem practice, to a defence to an action at common law on equitable grounds; permitted, in England, under the common-law procedure act of 1854. The term is used in a like manner in the practice under Various codes of pro- cedure and practice acts in the United States, by which, usually, a defendant is allowed to avail .himself of both legal and equitable defences in the same action. Equitable estate. A right or inter- est in land, which is acquired by opera^ tion of equity, or which is only recog- nized in a court of equity. That is properly an equitable estate or interest for which a court of equity affords the only remedy. Of this nature is the ben- efit of every trust, express or implied, which is not converted into a legal estate by the statute of uses. Others are : equities of re- demption, constructive trusts, and all equi- table charges. Burt. Comp. ch. S -An equitable estate is an estate an in- terest in which can only be enforced in a court of chancery. Avery i^. Dufrees, 9 Ohio,U5. It must not be supposed that courts of law never take any cognizance of equitable rights. Thus, for instance, a trustee de- frauding the parties equitably entitled under the trust may be criminally prose- cuted in a court of law. And for elections and other collateral purposes the equitable estate may be recognized in a court of law. Mozley Sj- W. Equitable mortgage. A lien upon real estate, recognized in equity as a security for the payment of money, and treated as a mortgage, although arising without any deed or express contract for EQUITY 434 EQUITY that distinct purpose. The most famil- iar example is the deposit of title-deeds by a debtor with his creditor; such a transaction is deemed a valid agreement for a mortgage, ■which amounts to an equitable mortgage, and is not within the operation of the statute of frauds. The term is also applied to a mortgage of a merely equitable estate or interest. And the lien of a vendor of real estate, as security for the purchase-money, is sometimes termed an equitable mort- gage. Wharton says that a mortgage is called equitable, where the subject of it is trust property ; where it is an equity of redemption ; where there is a written agreement only to make a mortgage; and where a debtor deposits the title-deeds of his estate with his creditor, or some person on his behalf. Equitable waste. Injury to a rever- sion or remainder in real estate, which is not recognized by the courts of law as waste, but which equity will interpose to prevent or remedy. Equitable waste is waste which was hitherto cognizable only in a court of equity, as by a tenant for life pulling down a mansion-house, or felling timber standing for ornament, or doing other permanent injury to the inheritance. This kind of waste is forbidden, even to a tenant for life who holds without impeachment of waste ; and this doctrine is recognized in the judi- cature act of 1875. MozUy ^ W- EQUITY. 1. Equality of rights; fairness in determination of conflicting claims; justice. 2. That system of jurisprudence of historic rather than philosophic origin, which embodies an endeavor to moderate or vary the operation of strict rules of law, in classes of cases in which they would operate unfairly, by application of the principles of justice, according to the opinion of a judge authorized for the purpose. Equity, scarce known to our forefathers, makes at present a great figure. Like a plant gradually tending to maturity, it has for ages been increasing in bulk ; slowly indeed, but constantly ; and at what dis- tance of time we are to take for its matu- rity is perhaps not easy to foretell. Courts of equity, limited originally within narrow bounds, hare, in civilized nations, acquired an extent of jurisdiction that obscured, in a great measure, the co urts of law. A revo- lution so signal will move every curious enquirer to attempt, or to wish at least, a discovery of the cause. But vain will be the attempt till first a clear idea be formed of the difference between law and equity. The former, we know deals in precise rules : but does the latter rest on conscience solely without any rule? This would be unsafe, while men are judges, liable not less to par- tiality than to error. Nor could a court without rules ever have attained that height of favor and extent of jurisdiction which courts of equity enjoy. A court of equity must then be governed by rules and principles. One operation of equity, uni- versally acknowledged, is to remedy im- perfections in the common law, which some- times is defective and sometimes exceeds just bounds. This suggests a hint. As equity is constantly opposed to common law, a just idea of the latter will probably lead to the former. After states were formed and govern- ments established, courts of law were in- vented to compel individuals to do their duty. This innovation, as generally hap- pens, was confined within narrow bounds. To these courts were given power to enforce duties essential to the existence of society : such as that of forbearing to do harm or mischief. Power was also given to enforce duties derived from covenants and promises, as tended more peculiarly to the well-being of society. The enforcing these duties by established authority was a great improve- ment, which gave full satisfaction, without suggesting any thought of proceeding any farther. To extend the protection of a court to natural duties of every sort would, in a new experiment, have been reckoned too bold. But when the great advantages of a court of law were experienced, its jurisdiction was gradually extended, with universal approbation, to every covenant and every promise. It was extended also to other matters, till it embraced every obvious duty arising in common and ordinary deal- ings between man and man ; while causes of an extraordinary nature, were appro- priated to the king and council. Such ex- traordinary cases, multiplying greatly by complex and intricate connections among individuals, daily discovered, became a burden too great for the king and council. In order therefore, to relieve this court, ex- traordinary cases of a civil nature were, in England, devolved upon the court of chan- cery. This made it necessary to give a name to the more ordinary branch of law which is the province of the common or ordinary courts of law. It is termed " the common law ; " and in opposition to it, the extra- ordinary branch which devolved on the court of chancery is termed equity: the name being derived from the nature of the jurisdiction, directed less by precise rules than secundum aquum et bonum, or accord- ing to what the judge in conscience thinks right. Thus equity, in its proper sense, comprehends every matter of law that by the common law is left without remedyj EQUITY 436 EQUITY and supposing the boundaries of the com- mon law to be ascertained, there can no longer remain any difficulty about the powers of a court of equity. With respect, then, to the common law, it is evident from the foregoing deduction that it has not a precise, natural boundary, but in some measure is circumscribed by accident and arbitrary practice. Ld. Karnes Prin. ofEq. Equity is a portion of law accidentally seTered from the common law. A very short account of the origin of equity will show this to be a correct statement, and that the separation of the two jurisdictions is not due to any difference in principle, but solely to historical circumstances. The history of the separate jurisdiction dates from the reign of Richard II. (1377). In this reign, poor suitors took courage to ap- peal to the prerogative jurisdiction of the chancellor, as the representative of the king, for that redress which they could not get at common law. But in the majority of instances where the chancellor was thus appealed to, it was admitted that while the common law recognized the plaintiff's rights, yet, by reason of the special cir- cumstances, the redress there would be in- adequate. The common lawyers soon saw the mischief this new jurisdiction was likely to do them, and we find a perpetual strug- gle going on against the chalncellor's au- thority ; in 1389 the commons petitioned that no man might be brought before the chancellor or the king's council for matters remediable at the common law ; but the king answered that he would keep his regality as his predecessors had done before him. In four years afterwards a second petition was presented to the same effect, and again in six years (1399) a similar petition was presented to the new King, Henry IV., who answered that the statutes should be kept, except where one party was so great and rich and the other so poor that he could not otherwise have remedy. The complaint always was, not that the chancellor was introducing new law, but that he was usurping and sup- planting the jurisdiction of the common- law courts. 'This accounts, historically, for the rise of that portion of equity jurispru- dence which does not conilict with the com- mon law, except so far as it anticipates it on its own domain by providing a more efficacious remedy. The other portion of equity jurisprudence, which deals with trusts, a separate subject-matter, took its origin about the same time, because the common law would not recognize mere fiduciary obligations, nor provide appro- priate writs to enforce their observance. The greatest, authorities of this day have differed on the subject of the relation which equity, has borne to the common law during its separation from it'; but it has become in fact, as it will hereafter be in name, a part of law, deciding in its own sphere ac- cording to precedents and fiixed rules. The following is an accurate definition, or rather description, of equity, as admin- istered in courts of chancery : That part of the law which, having power to enforce discovery, (1) administers trusts, mortgages, and other fiduciary obligations ; (2) admin- isters and adjusts common-law rights where the courts of common law have no ma- chinery ; (3) supplies a specific and preven- tive remedy for common-law wrongs where courts of common law only give subsequent damages. Chute. Eg. 4. Equity is not synonymous with natural justice, but has a narrower signification ; for not only does the court (in order that it may have some rule to proceed by, and not leave the rights of individuals to depend solely on the particular opinion of the party holding the great seal), strictly adhere to principles which have been successively enunciated by its various judges in adju- dicating on the causes which have been brought before them, notwithstanding the enforcement of such principles may in par- ticular instances occasion injustice ; but it also leaves many matters of natural justice to be disposed of /(n'o conscientice, from the impossibility of framing general rules re- specting them, and from the mischief and inconvenience which would arise from at- tempting judicially to enforce such moral duties as charity, gratitude, or kindness, or even positive engagements which are not founded on a good or valuable considera^ tion. Equity therefore, in its technical sense, contradistinguished from natural and universal equity or justice, may well be described as a " portion of justice " or natural equity, not embodied in legislative enact- ments, or in the rules of common law, yet modified by a due regard thereto and to the complex relations and conveniences of an artificial state of society, and adminis- tered in regard to cases where the particu- lar rights, in respect of which relief is sought, come within some general class of rights enforced at law, or may be enforced without detriment or inconvenience to the community ; but where, as to such particu- lar rights, the ordinary courts of law can- not, or originally did not, clearly afford adequate relief. Roberts, Prin. of Eg. Equity, in its technical and scientific legal use, means neither natural justice nor even all that portion of natural justice which is susceptible of being judicially enforced. It has a precise, limited, and definite significa- tion, and is used to denote a system of jus- tice which was administered in a particular court, — the English high court of-chancery, — which system can only be understood and explained by studying the history of that court, and how it came to exercise what is known as its extraordinary juris- diction. Bispham Prin. of Eg. 1. Equity is the term commonly used to designate that portion of the law which ,is administered by the courts of chancery in Lincoln's Inn and at the rolls. Equity, in this sense, is wider than law, and narrower than natural justice or natural equity, In EQUITY 436 ERECT the extent of the matters which are the subjects of its jurisdiction. Equity can- not he defined in its contents otherwise than by an enumeration of its various subject-matters, being trusts, mortgages, administrations, &c. Broum. The distinction between equity in the technical sense and law, is truly matter of history, and not matter of substance. The short sum of the matter is this, that the court of chancery recognizes certain rights and applies certain remedies, which the courts of law might have equally recognized and applied, but did not. Haynes Eq. Lect. I. Equity is not the chancellor's sense of moral right, or his sense of what is equal and just, but is a complex system of estab- lished law; and an equitable maxim — as equality is equity — can 'only be applied according to established rules. Savings Inst. V. Makin, 23 Me. 360. The word equity, in the oath adminis- tered to the special jury on appeals in common-law cases, under the statute of Georgia, is synonymous with law, mean- ing a system of jurisprudence governed by established rules,' and bound down by fixed precedents. The special jury is sworn to try the cause according to equity and the opinion they entertain of the evidence, and not their opinion of equity, as well as of the evidence. Thornton v. Lane, 11 Ga. 459. Equity, as used in the Georgia relief act of 1868, providing that the jury, under cer- tain circumstances, may reduce the plain- tiff's claims according to the equities be- tween the parties, does not mean a whim of the jury, nor mere mercy, but that fair and honest duty which each owes to the other, growing out of the contract, or aris- ing between them since. Butler ». Weath- ers, 39 Ga. 524. Equity of redemption. The privi- lege accorded to a mortgagor to re- deem the mortgaged estate after non- payment, at the time appointed, of the money secured by the mortgage accord- ing to the legal obligation of the instru- ment. This right or equity of redemption is, in the contemplation of the court of chancery, the ancient estate in the property without change of ownership. It is therefore sub- ject to all the limitations to which other equitable estates are liable, and is treated as an equitable asset. Wharton. An equity of redemption is an estate in lands, which may be devised or taken on execution, and which may descend to heirs and be subject to dower. Simonton v. Gray, 34 Me. 50. Equity of a statute. The sound in- terpretation of a statute the words of which may be too general, too special, or otherwise inaccurate or defective, is termed the equity of the statute. Equity to a settlement, or -wife's equity. The right of a wife, recognized in equity, to have a portion of her equi- table property settled upon herself and her children. This right was originally granted to the wife when the husband sued in a court of equity for the purpose of reducing the property into his posses- sion, on the principle that he who seeks equity must do equity. The chancellor was accustomed, whenever a husband needed to file a bill in order to reduce property in right of his wife to posses- sion, to make it a condition of granting whatever relief was prayed, that the husband should settle a proper portion of the fund or property upon the wife. Subsequently, however, this equity was allowed to be asserted actively by the wife. The amount to be settled on the wife and children is in the discretion of the court, and varies according to cir- cumstances. EQUIVALENT. In patent law, the term equivalent, when used of machines, has a certain definite meaning; but when used with regard to the chemical actions of such fluids as can be discovered only by experiment, it means equally good. Tyler .), ox primary evidence, is that par- ticular means of proof which is indicated by the nature of the fact under investi- gation, as the most natural and satisfac- tory; the best evidence the nature of the case admits; such evidence as may be called for in the first instance, upon the principle that its non-production gives rise to a reasonable suspicion that if produced it would tend against the fact alleged. The term secondary evidence is applied to evidence not primary, but which, having some tendency to prove the fact, is received because the best evi- dence cannot be obtained. Conclusive evidence sometimes means that which, while uncontradicted, controls the deci- sion of the judge or jury; it also means that which the law does not allow should be contradicted ; while presumptive evi- dence, as opposed to conclusive, is that which may be met and overthrown by counter proofs. Prima facie evidence is evidence which, standing alone and unexplained, would maintain the propo- sition and warrant the conclusion to sup- port which it is introduced. Emmons v. Westfield Bank, 97 Mass. 230. Conclu- sive evidence means some piece or mass of evidence sufficiently strong to gener- ate conviction in the mind of a tribunal or by law rendered obligatory on a party. Best Ev. § 533. EX. From; out of; of; by; on; on account of; according to. A word be- ginning many Latin phrases and max- ims, the principal of which are defined below. For others, see E, which is an- other form of this word, less frequently used. Ex abundanti. Out of abundance; abundantly ; superfluously. The expres- sion is oftenest used in the phrase ex ahundanti eautela, — out of abundant caution. Ex aequo et bono. According to what is just and good; in justice and fair dealing. Sometimes expressed in the form ea; hono et cequo, which is the order of the words as used in the civil law. Ex aatecedentibus et consequen- tibus fit optima iuterpretatlo. From what precedes and what follows the best interpretation is made. A doubtful word or passage may be best constnied by reference to the whole instrument. This rule is of general application in the interpretation of statutes, and of deeds and other iiistruments in writing, including wills, subject to the limitation, upon all such rules of construction, that there must be some doubt or difficulty as to the meaning of a word or clause apparent, before the rule will be applied; EX 449 EX for, where the words used are clear and unambiguous, they will be expounded in their natural and ordinary sense. The general meaning of the maxim is, that in oases of doubt one uniform and consistent sense is to be collected from the doubtful clause and from the entire context, if possible, and that the con- struction is not to be made upon dis- jointed parts of a writing which may operate' as a consistent and harmonious whole. Thus, in construing a bond, the condition may be taken into considera- tion, for the purpose of correcting and explaining the obligatory part. So the recitals in deeds or agreements may be looked into to discover the meaning of the parties to them; and covenants are construed as dependent upon each other, or otherwise, according to the intention of the parties as indicated by the whole deed. The intention of the testator, ■which is the chief guide in the inter- pretation of wills, is to be ascertained and collected from the whole instru- ment. And in the construction of stat- utes, where the meaning of a clause is doubtful, the courts will consider the other clauses, and even the preamble or the title of the statute, and adopt that interpretation of the clause in dis- pute which is most consistent with the general purpose of the statute. Ex arbitrio judicis. By the discre- tion of the judge. Ex certa scientia. Of sure knowl- edge. Formal words, anciently used in English letters-patent, expressing that the crown had full knowledge of the matter. Ex comitate. Out of comity; from courtesy. Ex consulto. From deliberation; deliberately. Ex contractu. Out of contract ; arising from a contract. A phrase ap- plied to rights and obligations, and to actions growing out of or founded upon contracts. As the opposite of ex de- licto, it expresses one of the principal distinctions of obligations and actions. Originally terms of the civil law, these phrases were adopted in the common law at a very early date, and are still generally employed to mark the dis- tinction between obligations and ac- VOL. I. 29 tions which arise out of contracts, and those which arise from wrongful acts or neglect. Ex debito juatitias. From a debt of justice; in accordance with the re- quirements of justice ; as a matter of legal right. A term applied to any thing asked from or granted by a court or judge, as a matter of strict legal right, distinguished from what is asked or granted as a matter of favor, termed ex gratia. The expression ex debito is sometimes used either as an abbreviated form of this phrase, or as applicable to any thing dema,nded or given or allowed as a matter of right or obligation. Ex delicto. Out of fault ; arising %out of wrongful act or neglect. A term applied to the class of obligations and actions which grow out of or are founded upon misconduct, negligence, or tort or crime of any description, as distin- guished from obligations and actions arising out of contracts, termed ex con- tractu, q. V. Ex demissione. From the demise; upon the demise. A phrase used in entitling actions in ejectment; usually in an abbreviated form, — ex dem. The fiction of a lease from the party whose title was sought to be established in the suit, to a fictitious person, having been resorted to for the purpose of determin- ing the question of title in an action of this description, the cause was entitled in the name of such fictitious person as plaintiff claiming on the demise of the real owner; usually in the form "John Doe ex dem." the real owner, termed the lessor of the plaintiff. The phrase was also used in the form ex dimissione. Ex diuturnitate temporis, omnia prsesumuntnr rite et solemniter esse acta. From length of time, all things are presumed to have been done rightly, and in due form. This maxim is gen- erally expressed, omnia prcesumuniur rite et solemniter esse acta, q. v. Ex dole malo. Out of fraud; from deceit. A phrase applied to obligations and causes of action vitiated by fraud or deceit. See Dolus. Ex dolo malo non oritur actio. Out of fraud a cause of action does not arise ; fraud cannot give a right of action. The rule of law expressed by this maxim, EX 450 EX that an action founded in fraud cannot be maintained, is included in the more comprehensive principle of the maxim, ex turpi causa non oritur actio, q. v. As to what is considered as ex dolo malo, within the meaning of this rule, see Dolus. Ex facie. From the face ; apparently ; evidently. A term applied to what ap- pears on the face of a writing. Ex facto. 1. Out of fact; from mat- ter of fact. An example of the use of the phrase in this sense occurs in the maxim, ex facto Jus oritur. 2. From a thing done ; in consequence of an act or deed. Generally applied, in this sense, to something done in viola- tion of law or right. Thus Bracton ap-, plies it to a title commencing in an un- lawful act, giving the phrase somewhat of the force of de facto, as distinguished tromdejure. Bract. 172. Ez facto jus oritur. Out of the fact the law arises ; law arises from fact. A rule of law, although it may be consid- ered as having existence as an abstract principle independent of any facts call- ing for its application, continues in ab- straction and theory until an act is done on which it can attach, and assume, as it were, a body and shape. The maxim must be understood in this sense (Best Ev. § 1), in which it is consistent with the theory of the common law, that, in applying the rules of law to new ques- tions and new circumstances, the courts do not make new laws, but merely de- clare the law already existing. A some- what different meaning is sometimes given to the maxim in applying it to a particular case, — that the decision of the law in any one case depends upon the facts proved or made to appear in that case. The words are also trans- lated: out of fact the right arises; with reference to a right claimed which de- pends upon matter of fact. Ex gratia. Out of grace ; from favor. A terra applied to any thing asked or granted as a matter of favor or indul- gence, as distinguished from thing de- manded or granted ex dehito. The phrase ex gratia was commonly inserted in grants from the crown, to indicate that such grants were not made upon any legal right or claim to the subject-matter. Ex iudustrla. From deliberate de- sign ; with fixed purpose ; intentionally. Ex male&cio. Out of a wrongful act; from misconduct; arising out of an act in any way illegal. This term is used in the civil law, in a sense nearly similar to that of the phrase ex delicto in the common law, to distinguish obli- gations and actions arising out of mis- conduct, malfeasance, or any illegal a«t, from those growing out of contract, termed, therefore, ex contractu. Ex mero motu. Of mere motion; of free will, without request from an- other; of one's own motion. A term frequently applied to an order made or a proceeding taken by a court or judge, which is not asked for by or upon the motion of any party, but which is, not- withstanding, deemed proper as a mat- ter of justice or public policy. The words were also used in royal charters and patents to indicate that the grant was of the free will of the sovereign, and not under any claim of right. Com- pare Ex GRATIA. Ex mora. From delay; on account of default. Where, under a contract for the payment of money, payment is not made at the time agreed, the inter- est allowed for the time subsequently elapsing before payment is said to be ex mora. Ex necessitate. From necessity; necessarily. This and the next succeed- ing phrase are used in expressing rules and exceptions to rules of law in favor of those who may have unavoidably and from necessity incurred some liability from which they should be relieved. Thus the right of a landlord to distrain for rent all property found upon the de- mised premises, without regard to its ownership, is said not to extend to prop- erty of a stranger brought there ex ne- cessitate, or ex necessitate rei. Ex necessitate rei. From the neces- sity of the thing; from the urgency of the case. Ex nudo pacto non oritur actio. From a bare agreement a cause of action does not arise; no cause of action arises from a mere promise without considera- tion. This is a leading maxim in both the common law and the civil law. It is applied, generally speaking, to parol EX 451 EX agreements without consideration, and to mei-e gratuitous promises and under- takings, which, however binding in morals or in honor, do not create any legal obligation. Promises under seal, however, although without actual con- sideration, are presumptively binding, the solemnity of the execution and de- livery of a sealed instrument being held to import a consideration. As to the meaning of the rule, see, further, Nu- dum PACTUM. Ex officio. From office ; by virtue of office; officially. A term applied to an authority derived from official character merely, not expressly conferred upon the individual, but rather annexed to the official position. Also used of an act done in an official character, or as a con- sequence of office, and without any other appointment or authority than that con- ferred by the office. Ex parte. On the part ; of one part ; on one side. A term applied to proceed- ings in an action had on the application or at the instance of one side only, and without notice or opportunity to oppose given to the other side; and to proceed- ings in which there is no adverse party. Ex parte materna. On the mother's side ; of the maternal line. Ex parte paterna. On the father's side; of the paternal line. The phrases ex parte materna and ex parte paterna denote the line, or blood, of the mother or father, and have no such restricfr ed or limited sense as from the mother or father exclusively. Banta v. Deraarest, 24 N. J. L. 431. Ex post facto. From an after act; in consequence of a subsequent act. A phrase used in the civil law, and in early English law, to describe any act done or effect arising out of matter occurring subsequent to some prior act ; frequently as the opposite or correlative of the phrases ab initio and ante facta. This more general sense has fallen into com- parative disuse; and, in modern law, the term is principally used to designate a class of statutes. This is especially the case in the United States, where, by reason of the prohibition in the consti- tutions of the United States and many of the states of the passage of ex post facto laws, the meaning of the term has been much discussed. The literal mean- ing of ex post facto law is, clearly, a law of after-enactment, — a law which, sub- sequently enacted, operates upon some- thing done prior to its passage ; which would seem to be the true meaning of the term, giving to the word facto the sense of a public act, and not confining it merely to acts of individuals. But the phrase is generally defined, some- what loosely, as meaning laws passed concerning and after a fact or thing done, or action committed; a law passed after a fact done by a subject or citizen, which shall have relation to such fact, and shall punish him for having done it ; laws made to punish for actions done before the existence of such laws. See, for a very full discussion of the literal and grammatical translation of the phrase ex post facto, and explanation of the force of the terra ex post facto law, BurriU, 446, 447. As used in the American constitutions, an ex post facto law is briefly defined as a law which renders an act punishable in a manner in which it was not punish- able when committed. The constitu- tional restriction does not extend to all retros^^jiive laws, which might be in- cluded in the literal rendering of the phrase, but is limited to laws for the creation or punishment of crime. Ex post Jhcto signifies something done so as to affect another thing that was com- mitted before. Thus, a lease granted by tenant for life to endure beyond his life may be confirmed ex post facto by the re- versioner or remainder-man. An ex post facto law is a law visiting a past act with penal consequences. Mozley §• W. A man may he a trespasser from the be- ginning by matter of after fact ; as where an entry is given by law, and the party abuses it; or where the law gives a dis- tress, and the party kills or works the dis- tress. So an act unlawful in the begin- ning may, in some cases, become lawful by matter of after fact. In reference to such and all similar cases, the words ex post facto mean by matter of after fact; by something after the fact ; where the phrase is used unconnected with and without relar tion to legislative acts or laws. Calder v. Bull, 3 Dall. 386. The phrase, ex post facto law, literally means any law which relates to and oper- ates upon a fact which existed prior to its enactment. But this sense of the words is too large and indefinite to be received as the sense in which they were used and un- derstodd by the framers of our constitu- tion. Many statutes have a retrospective EX 452 EX operation, which cannot be supposed to be included in this constitutional prohibition. Of this description are all acts legalizing past proceedings ; all acts of relief of pardon or indemnity; all acts which might miti- gate the malignity of an offence, or mollify the rigor of the criminal law; and many others which might be enumerated. These are all retrospectire, but are not. In the constitutional sense, ex post facto. The plain and ob-rious meaning of the prohibi- tion is, that the legislature shall not pass any law, after a fact done by any citizen, which shall have relation to that fact, so as to punish that which was innocent when done ; or to add to the punishment of that which was criminal; or to increase the malignity of a crime; or to retrench the rules of evidence, so as to make conviction more easy. This definition of an ex post facto law is sanctioned by long usage. The words had acquired an established, definite, technical signification, long before British jurisprudence was known, or the English language spoken, in America. In this sense the words have been used and under- stood by the most celebrated statesmen and jurists, both here and in England. Strong V. State, 1 Blackf. 193; Den v. Van Riper, 16 N. J. L. 7, 11. The phrase ex post facto, in the constitu- tion, extends to criminal and not to civil cases. And under this head is included : 1. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2. Every law that aggravates a crime, or mates it greater than it was when committed. 3. Every law that changes the punishment, and in- flicts a greater punishment than the law annexed to the crime when committed. 4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convitft the offender. All these, and similar laws, are prohibited by the constitution. But a law may be ex post faoto, and still not amenable to this con- stitutional inhibition; that is, provided it mollifies, instead of aggravating, the rigor of the criminal law. Boston v. Cummins, 16 Ga. 102 ; Cummings ». Missouri, 4 Wall. 277 ; United States v. Hall, 2 Wasli. C. Ct. 366; Woart v. Winnick, 3 N. H. 473. An ex post facto law is one which renders an act punishable, in a manner in which it was not punishable when committed. Such a law may inflict penalties on the person, or pecuniary penalties which swell the public treasury. The legislature is there- fore prohibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime, which was not declared, by some previous law, to render him liable to such punishment. Fletcher v. Peck, 6 Cmnch, 87, 138. That is an ex post fa(^o law which in- creases the punishment denounced against the act when committed, or which pun- ishes an offence in a manner in which it was not pimishable when committed, irrespective of its comparative severity, unless the new punishment is one the same in kind as the old, but less in degree. Shep- herd V. People, 25 N. Y. 406. As used in the constitution of the United States, the phrase must be understood in a restricted sense, and as relating to criminal cases only. Carpenter v. Pennsylvania, 17 How. 456 ; Municipality, &c. v. Wheeler, 10 La. Ann. 745; Perry's Case, 3 Gratt. 632; 3. p. White v. Wayne, T. U. P. Charlt. 94 ; Byrne v. Stewart, 3 Desau. 466. It does not extend to civil rights or remedies. Calder v Bull, 3 DcUl. 386; Society for the Propagation of the Gtospel, &c. V. Wheeler, 2 Gall 105, 138; State v. Heed, 31 N. J. L. 133; Suydam v. Bank of New Brunswick, 3 N. J. Eg. 114. laws altering, modifying, and even tak- ing away, remedies for the recovery of debts, do not violate the provisions of the constitution against the passage of ex post facto laws, and laws impairing the obligar tion of contracts. Evans v. Montgomery, 4 Watts Sj- S. 218 ; Oriental Bank v. Freeze, 18 Me. 109 ; Mechanics', &c. Bank Appeal, 31 Comb. 63; Lord v. Chadbourne, 43 Me. 429. The term ex post facto law, in the United States constitution, cannot be construed to include and to prohibit the enacting any law after a fact ; nor even to prohibit the depriving a citizen of a vested right to property. Calder v. Bull, 3 Dall.Zm. Every retrospective act is not necessarily an ex post facto law. That phrase embraces only such laws as impose or affect penal- ties or forfeitures. Locke v. New Orleans, 4 WaU. 172. Retrospective laws divesting vested rights ai-e impolitic and unjust; but they are not ex post facto laws within the mean- ing of the constitution of the United States, nor repugnant to any other of its provi- sions ; and, if not repugnant to the state constitution, a court cannot pronounce them to be void, merely because in their judgment they are contrary to the princi- ples of natural justice. Albee v. May, 2 Paine, 74. Retrospective laws which do not impair the obligation of contracts, or affect vested rights, or partake of the character of ex post facto laws; are not prohibited by the constitution. Bay v. Gage, 36 Barb. 447. A statute changing the punishment of an offence from whipping to imprisonment may be applied to an offence committed be- fore, but prosecuted after, its passage, with- out violating the constitutional prohibition against ex post facto laws. Every law which ■operates retrospectively is not necessarily an ex post faOa law. The phrase has a definite technical signification. The pro- vision in the constitution means that the le^slature shall not pass any law, after a fact done by a citizen, which shall have re- EX 453 EX lation to that fact, so as to punish that which was innocent when done, or to add to the punishment of that which was crimi- nal, or to increase the malignity of a crime, or to alter the rules of evidence so as to make conviction more easy. A law which substitutes imprisonment for whipping, can- not be said to produce any of these results. Strong V. State, 1 Black/. 193. An ex post facto law does not involve, in any of its definitions, a change of the place of trial of an alleged offence after its com- mission. Gut V. State, 9 Wall. 35. An act is not unconstitutional as being ex post facto which authorizes the jury, in their discretion, to inflict fine and imprison- ment, one or both, in lieu of imprisonment in the penitentiary not less than two, nor more than five, years. Turner v. State, 40 Ala. 21. When, before judgment is rendered in a criminal action, a statute is passed, increas- ing the penalty for the offence alleged to have been committed, and repealing, with- out any saving clause, the former statutes imder which the indictment was found, so far as they are inconsistent, a liability is imposed which did not exist when the act constituting the offence was committed, and judgment of conviction cannot be rendered. Commonwealth v. McDonough, 13 Allen, 581. A statute providing that when any per- son who should be convicted of certain of- fences, of which the punishment was con- finement, iSbc, had been before sentenced to a like punishment, he should be sentenced to solitary confinement, &c., in addition to the punishment by law prescribed for the offence for which he should be last tried ; and that when the former conviction, &c., should not be known, at the time of the Eubseciuent indictment and trial, he might afterwards be brought into court to receive the additional sentence, — is not an ex post facto law, when applied to a case in which the second offence was committed after the passing of the statute. Boss's Case, 2 Pick. 165. Otherwise, where the offence was com- mitted before the statute was passed. Kiley's Case, 2 Pich. 172. A statute which provides that "when any person is convicted of an offence, and sentenced to confinement therefor in the penitentiary, and it is alleged in the indict- ment on which he is convicted, and ad- mitted, or by the jury found, that he had been before sentenced in the United States to a like punishment, he shall be sentenced to be confined five years, in addition to the time to which he is or would be otherwise sentenced," applies to the case of a prisoner whose first conviction and sentence was prior to its passage, and, as applicable to such a case, is not ex post facto and uncon- stitutional. It does not apply to the case of a conviction for an offence committed after the commission of that for which the prisoner is on trial. Rand v. Common- wealth, 9 Gratt. 738. A statute providing that persons previ- ously convicted of murder and awaiting sentence, instead of being sentenced to death, shall be sentenced to confinement at hard labor until such punishment of death shall be inflicted, which shall not be for one year, nor then, until a warrant shall be issued by the governor, — is ex post facto, and void. Although the intention of the legislature may have been to extend favor rather than increased severity to such con- victs, the statute changes, and in effect increases, the punishment, since it prescribes a year's imprisonment before the punish- ment of death. It is competent for the legislature to remit any separable portion of the prescribed punishment, — e.g., where a crime is punished by both fine and impris- onment, to remit either one ; or where it is punished by stripes, to diminish the num- ber. And changes referable to prison dis- cipline — e.g., changes in the employment of the convicts, the means of restraint, &c. — may be made, even though they operate to increase the severity of the punishment. But the legislature cannot substitute for the former penalty a different one. Hart- ung V. People, 22 N. Y. 95 ; Shepherd v. People, 24 How. Pr. 388. Bx proprio vigore. By its ovfn force. Ex relatione. Upop the information ; on the relation. A phrase used in en- titling proceedings prosecuted in the name of the people on the relation or information of the individual aggrieved, who is termed the relator. Such pro- ceedings are entitled in the name of the people or the state ex relatione the indi- vidual on whose information the prose- cution is brought. An abbreviated form, ex rel. , is frequently used. Ex testameuto. From a testament ; under a will. A phrase used as the op- posite or correlative of ab intestato, q.v. Ex turpi causa non oritur actio. Out of a base transaction a cause of ac- tion does not arise; no cause of action arises from any contract or other trans- action which is itself immoral or illegal. This is a maxim of wide and frequent application, especially in the law of con- tracts, in regard to which it is often ex- pressed in the form, ex turpi contractu non oritur actio, — out of a base contract a cause of action does not arise. In this application of the rule, all contracts which are immoral or illegal are held void, and cannot be enforced by the aid of the law; whether they are contrary to an express statute or rule of the com- mon law, or merely contrary to the geu- EX 454 EXACTIOIT eral policy of the law, or contra bonos mores; and whether it is the consid- eration (which is the ground of the promise) or the promise (which is the consequence or effect of the considera- tion) that is objectionable. Nor is any distinction made, under this principle, between parol contracts and contracts under seal. Instances of the applica- tion of the maxim to contracts and to other matters are familiar, and need not be here cited. Numerous subjects and transactions, of which it is declared by other maxims non oritur actio, — such as ex dolo malo, from fraud; ex malejicio, from an illegal act; expacto iUicito, from an illegal agreement, — seem to be includ- ed in the more comprehensive expression, ex turpi causa, and set forth the same principle in less general terms. It may be remarked, further, that ex turpi causa a defence cannot arise, any more than a right of action, at least as against an innocent party. No man shall set up his own iniquity as a defence. But, where the turpitude of both parties to the transaction plainly appears, the ille- gality constitutes a defence in an action by one against the other, based on the unlawful transaction ; no remedy is af- forded, either at law or in equity, in fa- vor of one against the other of two per- sons equally culpable. This is consis- tent with the consideration upon which the rules of law governing this whole subject depend, — that the object sought is the public good, rather than the ad- vantage of either party to an iniquitous agreement or transaction. With respect particularly to contracts affected by fraud, — ex dolo malo, — it is said, generally, fraud vitiates every thing. But fraud merely gives a right to avoid or rescind a contract, and does not ren- der it absolutely void; and if a party to a contract which might be attacked on the ground of fraud, elects, with knowl- edge of the fraud, to treat the contract as binding, he loses his right to avoid or rescind it, and an action upon it may be sustained. The principle of ex dolo malo non oritur actio is : no court will lend its aid to a man who founds his cause of action upon an im- moral or an Illegal act. If, from the plain- tiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground that the court goes, — not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiif and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it ; for, where both are equally in fault, potior est conditio defendentis. Holman v. Johnson, 1 Cowp. 341. Wherever a transaction contravenes the general policy or the express stipulations of the law, no form of expression is per- mitted to veil its inherent impropriety ; the real object of each party to the contract will be examined, and, if either is found to be aiming at that which is repugnant to principles establisiied for the general bene- fit of society, the courts of justice will re- pudiate it, however artfully the arrange- ments have been made to accomplish the desired end. Where both have been equally guilty, the courts have with equal pertinacity refused to interfere, though that refusal has indirectly benefited one of the guilty parties. Groves v. Slaughter, 15 Pet. 449. In the application of this maxim there is no distinction as to vitiating the contract between malum in se and malum prohibitum. (2 Bos. ^ P. 374.) The rule is not re- stricted to contracts expressly forbidden: it is extended to such as are calculated to affect the general interest and policy of the country. Bank of the United States v. Owens, 2 Pet. 527 ; and see State v. Buffalo, 2 Hill, (N. Y.) 434. Contracts are illegal, either in respect to the consideration or the promise. Where both of these are lawful and right, the maxim, ex turpi contractu non oritur actio, can have no application. The incapacity of the contracting party, whether it be a cor- poration, an infant, a. feme covert, or a luna- tic, has nothing to do with the legality of the contract, in this sense. Bissell v. Mich- igan Southern, &c. E. B. Co., 22 N. Y. 258. Ex vi termini. From the force of the term; by the very meaning of the term. Ex visceribus. From the bowels; from the essence. Ex visitatione Dei. From the visi- tation of God; by natural cause. A term used, in inquisitions by a coroner, to signify that the death inquired into is found to have been natural. EXACTION. A wrong done by an officer, or one in pretended authority, by taking a reward or fee for that which the law allows not. The difference between exaction and extortion is this : extortion is where an officer extorts more than his due, when something is due to him ; an ex- EXAMINATION 455 EXAMINATION action is when he wrests a fee or reward where -uone is due. Jacob, EXAMINATION. The various ex- aminations most frequently spoken of in jurisprudence are the following: Examination of accused persons. This is a preliminary hearing of the evi- dence against a person who has been arrested upon a criminal complaint, by a justice or magistrate, or under United States laws, before one of the commis- sioners of the circuit court. If the magistrate is satisfied, upon hearing the proofs offered by the complainant, that a prima facie case may be established against the accused, it is his duty to com- mit him, taking bail or not, as the case may admit, and sending the deposi- tions, in cases requiring intervention of the grand jury, before that body, for their consideration. But, if no case is made out, upon complainant's own proofs the magistrate may dismiss the complaint, and set the accused at liberty. The preliminary examination is therefore, practically at least, as con- ducted in New York state, a privilege of the accused, ^s it may save him the ne- cessity of giving bail, and the delay of awaiting the grand jury's action. If he waives an examination, none is held. Examination of bankrupt. This is the interrogation of a bankrupt, in the course of proceedings in bankrupt- cy, touching the state of his property. This is authorized in the United States by Rev. Stat. § 5086; and section 5087 authorizes the examination of a bank- rupt's wife. Examination of body of a de- ceased person. See Post-moktem EXAMIISTATION. Examination of invention. By U. S. Rev. Stat. § 4893, on filing an application for a patent, the commis- sioner of patents must cause an exami- nation to be made of the alleged new invention. The object of the examina- tion is to ascertain whether the inven- tion is sufficiently new and useful to be patentable, whether it interferes with any other invention, &c. These exami- nations involve comparison of the fear tures of the invention submitted, with all known inventions of like kind; and they constitute a large part of the busi- ness of the patent office. Examination of a long account. This phrase is used, in statutes author- izing trial by referees instead of by jury, of action involving the examination of a long account. It does not mean, the ex- amination of the account to ascertain the result or effect of it, but the proof by testimony of the correctness of the items composing it. Magown v. Sin- clair, 5 Daly, 63. Examination in proceedings sup- plementary to execution. See Sup- plementary Proceedings. Examination of students, prelimi- nary to admission to the bar, as a test of their learning and qualifications, is prescribed by laws or rules of court of several of the states. In England, the examinations of an ar- ticled clerk, for the purpose of testing his fitness to become an attorney and solicitor, are three in number : the preliminary ex- amination, at the commencement of his clerkship; the intermediate examination, in the middle of it ; and the final examina- tion, at the end of it. Mozley Sf W. Examination of title. After a con- tract has been made for a sale of real property, or after an agreement for a loan, and before a conveyance is ac- cepted or the money is advanced, it is usual for the purchaser or lender, by his attorney, to make an examination of the deeds by which the seller holds, and to search the public records for any incumbrances upon the land. The gen- eral object is to ascertain whether the title about to be conveyed is in truth good, and free from any charges except such as may have been considered in the agreement of sale. This is called an examination of title. The result is embodied in a document known as ab- stract of title, }. V. Examination of 'witness. This consists in interrogating a witness to elicit his testimony. The ordinary ex- amination is in three parts, — the direct examination, or examination in chief, by the counsel of the party in whose be- half the witness is produced ; the cross examination, which is by the adverse party, and must ordinarily be confined to the subject-matter on which he has been questioned on the dii'ect, but may EXCEPTIO 456 EXCEPTION be very searching and extensive; and the re-direct, which must ordinarily be confined to points of inquu-y arising out of the cross-examination. There may also be a re-cross examination, when the course of the testimony requires. And there is also what is known as an exam- ination on the voir dire, q. v. Ezaminer. The title of an officer or person charged with the duty of taking or making an examination. Thus there are examiners in chancery, whose func- tion it is to take depositions of wit- nesses, which may afterwards be sub- mitted to the court on the hearing. There are also examiners in the patent office, whose business it is to examine the patentability of inventions. Ezceptio probat regulam. This maxim is often translated, " the excep- tion proves " or "confirms the rule;" and is understood as meaning that an exception to a general rule, which is not within the reason of the rule, and there- fore is consistent with the general prin- ciple, is a confirmation of the i-ule itself. Another rendering is, " the exception tests the rule. " Probo, or prove, means ♦' to put to the test," quite as clearly as " to confirm or establish." In this ren- dering, the idea is that the correctness of the form in which a rule is expressed may be tested by observing whether ex- ceptions to it must be allowed. Thus, if the rule were offered, ' ' homicide is un- lawful," the objection would at once oc- cur, that some cases must be excepted ; the execution of a criminal, and killing in self-defence, for instance. If the form of the rule were changed to ' ' mur- der is unlawful," these exceptions would be unnecessaiy, and this would show that the rule was more accurately stated. Thus the necessity of exceptions is a test of the correctness of a rule. The second rendering of the proverb seems more simple and sensible ; the first is, however, supported by the consid- eration that what appears to be intended as the same, is expressed in other forms which accord better with the first con- struction. Thus the following are found in Bacon's Aphorisms : Exceptio firraat regulam in casibus non exceptis, the ex- ception affirms the rule in cases not ex- cepted; exceptio firmat regulam in con- trarium, the exception affirms the rule to be the contrary; exceptio quoque regu- lam declarat, the exception also declares the rule. Every exception that can be accounted for is so much a confirmation of the rule that it has become a maxim, — exceptio pro- bat regulam. King v. Erlswell, 3 Dum. ^ E. 707. EXCEPTION. Generally, an exclu- sion of or objection to something. 1. An exception in a contract or deed is a clause whereby the party excludes from the operation of the instrument some part of the subject-matter pre- viously described, which would other- wise be subject to it. 2. An exception in a statute is a clause which excludes from the opera- tion of the law some of the persons or things which would be included by force of the previous description. How it differs from proviso, see Proviso. An exception in a deed is always a part of the thing granted, and of a thing in being, and is distinguishable from a reservation, which is of a thing not in being, but newly created out of the lands and tenements granted. Both words, however, are often used promis- cuously ; and the distinction will not be observed where to do so would defeat the intention of the parties to the deed. Winthrop v. Fairbanks, 41 Me. 307; State V. Wilson, 42 Id. 9; Adams v. Morse, 51 Id. 497 ; Cocheco Manuf . Co. V. Whittier, 10 N. H. 305; Goodrich w. Eastern R. R. Co., 37 Id. 149; Thomp- son V. Gregory, 4 Johns. 81; Gould v. Glass, 19 Barh. 179. 3. In admiralty and equity practice, exception is a formal allegation tendered by a party, that some previous pleading or proceeding taken by the adverse party is insufficient. 4. In common-law practice, an excep- tion is a formal notice, following the de- nial of a request or overruling an objec- tion, made in the course of a trial, that the party intends to claim the benefit of the request or objection in future pro- ceedings ; as upon writ of error. It is also somewhat used to signify other ob- jections in the course of a suit; for ex- ample, exception to bail is a formal ob- jection that special bail offered by defend- ant are insufficient. 1 Tidd Pr. 255. EXCHANGE 457 EXCLUSIVE EXCHANGE. When used to desig- nate a mode of transferring property, exchange consists in a mutual grant of interests esteemed equal, one being the consideration for the other. The distinction between a sale and ex- change of property is rather one of shadow than of substance. In both cases, the title to property is absolutely transferred ; and the same rules of law are applicable to the transaction, whether the consideration of the contract is money or by way of barter. It can make no essential difference in the rights and obligations of parties, that goods and merchandise are transferred and paid for by other goods and merchandise instead of by money, which is but the representa- tive of value or property. Commonwealth V. Clark, 14 Gray, 367. EXCHEQUER. The establishment or department of the public business in England having the management of the royal revenue. It for a long time con- sisted of tv?o divisions, the first being the office of the receipt of the exchequer for collection of the royal revenue, the sec- ond being a court for the administra- tion of justice; but the court of excheq- uer (q. V.) is now fused in the high court of justice. iSzchequer bills, or bonds. Instru- ments issued by the exchequer, under the authority, for the most part, of acts of par- liament passed for the purpose, and contain- ing an engagement, on the part of the gov- ernment, for the repayment of the principal sums advanced, with interest in the mean time. 2 Steph. Com. 874. EXCISE. Means, properly, an im- post or charge for the support of govern- ment, levied upon commodities of inland growth and manufacture, and corre- sponding with customs or duties upon imported merchandise. Dr. Johnson's definition of excise is noticeable as expressing the general prejudice which long prevailed in Eng- land against this mode of collecting a revenue: "A hateftd tax levied upon commodities, and adjudged, not by the common judges of property, but by wretches hired by those to whom excise is paid." Excise was a name formerly confined to the imposition upon beer, ale, cider, and other commodities, being charged some- times upon the consumption of the com- modity, but more frequently upon the retail sale of it. ( Couxl ; 1 Bl. Com. 318 ; 2 Steph. Com. 565.) Under recent acts of parlia- ment, however, many other imposts have been classed under excise. Such is the case with regard to the license which must be taken out by every one who keeps a dog, uses a gun, or deals in game. (2 StepA. Com. 567.) Moztei/ ^ W. The term excise is of very general signifi- cation, meaning tribute, custom, tax, toll- age, or assessment. It is limited, in the Massachusetts constitution, as to its opera- tion, to produce, goods, wares, merchandise, and commodities. Portland Bank v. Ap- thorp, 12 MoAss. 252. The words " tax " and " excise," although often used as synonymous, are to be con- sidered as having entirely distinct and sepa- rate significations, under Mass. Const, ch. 1, § 1, art. 4. The former is a charge ap- portioned either among the whole people of the state, or those residing within certain districts, municipalities, or sections. It is required to be imposed, so that, if levied for the public charges of government, it shall be shared according to the estate, real and personal, which each person may possess ; or, if raised to defray the cost of some local improvement of a public nature, it shall be borne by those who will receive some special and peculiar benefit or advantage which an expenditure of money for a public object may cause to those on whom the tax is assessed. An excise, on the other hand, is of a different character. It is based on no rule of apportionment or equality whatever. It is a fixed, absolute, and direct charge laid on merchandise, products, or commod- ities, without any regard to the amount of property belongmg to those on whom it may fall, or to any supposed relation be- tween money expended for a public object and a special benefit occasioned to those by whom the charge is to be paid. OUver v, Washington Mills, 11 AUen, 268. Excise law. As the various spirit- uous or intoxicating liquors of domestic production were early made prominent subjects for levy of an excise, and as the laws having this for their original purpose were easily and naturally made use of, to some extent, as a means of restraining or regulating the sale of such liquors in the promotion of temperance, a tendency is noticed to use the term excise laws as if it meant laws restricting the sale of liquor. Such is not the legitimate meaning of the phrase. An excise law is a law to collect revenue to the govern- ment, from any specified domestic pro- ductions of the country. The English excise system corressponds to the internal revenue system in the United States. EXCLTJSIVE. That which debars or shuts out. Thus, an exclusive privi- lege is one which forbids all persons but its proprietor to exercise it. The term exclusive, in section 11 of the EXCOMMUNICATION 458 EXCUSAT pEitent act of 1836, comprehends not only an exclusive right to a whole patent, but an exclusire right to the patent in a partic- ular section of country. An assignment may be exclusive, though limited to a cer- tain number of machines. Washburn v. Gould, 3 Story C. Ct. 122, 181, 1 West. Law J. 465, 7 Law Rep. 276. A provision in a municipal charter, giv- ing the city authorities the exclusive right to fix the rates of licenses for selling liquor, does not imply a restriction upon the legis- lature, preventing them from passing a gen- eral act regulating the sale of liquor through- out the state. The city acquires no other power under such a provision to regulate the sale of spirituous liquors than it has in any other matters relating to the police of the city ; and the fixing rates and granting a license by the city excuses from liability to the city ordinances, but cannot excuse from liability to the penal laws of the state. The word exclusive, in the connection in which it is used in such a charter, does not imply an express release to the corporators from all liability to the state laws relative to licenses. It may be interpreted as evinc- ing the intention to gran€ this exclusive power to the council as against other co- ordinate city authorities, or to secure to the city, as a matter of police regulation, the right to fix the rates of such licenses for city purposes independently of the action of the legislature, without raising any im- plication that it was the intention to ex- empt persons living within the bounds of the corporation from the operation of the general license laws of the state. Sloan v. State, 8 Black/. 361. On a sd.fa., the jury found for the plain- tiff in a certain sura, " exclusive of a bond," not then due. Held, fliat the word exclu- sive might be construed " over and above," to'effectuate the intent of the jury. Walker V. Gibbs, 2 DaU. 211, 1 Yeates, 255. EXCOMMUNICATION. A sen- tence of censure pronounced by one of the spiritual courts for offences falling under ecclesiastical cognizance. It is described in the books as twofold: 1. The lesser excommunication, which is an ecclesiastical censure, excluding the party from the sacraments. 2. The greater, which excludes him from the company of all Christians. Formerly, too, an excommunicated man was under various civil disabilities. He could not serve upon juries, or be a witness in any court; neither could he bring an action to recover lands or money due to him. These penalties are abolished by Stat. 53 Geo. III. ch. 127. 3 Bl. Com. 101; 8 Steph. Com. 315, 316. EXCUSABLE HOMICIDE. See Homicide. Xizcusat vel eztenuat delictum in capitalibua, quod non operatur idem in civilibus. That excuses or extenu- ates a wrong in capital cases, which does not so operate in civil suits. In crim- inal prosecutions, especially for capital crimes, matters are admissible in de- fence, such as want of malice or of evil intent, which do not constitute a de- fence to a civil action, even for a like wrong. The principle appears to be, that punishment for an o&nce is to be awarded only where a criminal intent is shown : while the object of the civil pro- ceeding is to afford the injured party a remedy for the wrong done him irre- spective of the intent; although, in cases of malicious injury, vindictive damages are sometimes allowed by way of punish- ment. Bacon says that, in capital causes, the law will not punish in so high a degree, except the malice of the will and the in- tention appear; but, in civil trespasses, and injuries that are of an inferior na- ture, the law doth rather consider the damage of the party wronged than the malice of him that was the wrong- doer. For instance, the law makes a difference between killing a man upon malice aforethought, and upon present heat and provocation ; but if I slander a man, and thereby damnify him in his name and credit, it is not material whether I do so upon sudden choler, or of set malice; but I shall be, in either case, answerable for damages. For there is a distinction in this respect be- tween answering civiliter and criminali- ler for acts injurious to others; in the latter case, the maxim ordinarily applies, actus non facit reum nisi tnens sit rea: but it is ofttimes otherwise in civil ac- tions, where the intent may be immate- rial if the act done were injurious to an- other. Of this rule a familiar instance occurs in the liability of a sheriff, who, by mistake, seizes the goods of the wrong party under a writ of _/f. fa. So an ac- tion for the infringement of a patent is maintainable in respect of what the de- fendant does, not of what he intends; the patentee is not the less prejudiced because the invasion of his right was unintentional. Bacon Max. reg. 7; Broom Max. 324. EXECUTE 459 EXECUTE EXECUTE. To complete; to finish; to perfect; to perform. Executed: that ■which is completed or performed. Exe- cution: the completion or entire per- formance of something. Executory: that which has not yet been, but is to be, performed or done. These words are used in a variety of senses and connections; yet the mean- ing generally bears a close relation to the general significations above given. To execute, applied to a word which is at once the name of a written instru- ment, and also stands for the rights and relations created by it, may mean either to complete the instrument, i.e. do whatever is necessary to render it operative and valid; or. to perform its stipulations, i.e. do what it provides or requires. To execute a contract, spoken not of the mere instrument or writing in which the contract might be embodied, but of its substance, of the relations and rights created by it, means, to perform its stip- ulations; but the phrase may be used of the instrument only, and then execu- tion means subscribing, and perhaps sealing. To execute a deed, a mortgage, or a will, almost always means to sign, seal, and deliver the instrument. To execute a decree, judgment, writ, or process, means, almost invariably, to perform its requirements. To execute a criminal is to put him to death. The true meaning seems to be, that the sentence is executed; that is, performed, carried into effect. To execute a written instrument spoken of as a writing only, not with reference to its substance, means to complete it as an effective instrument, to sign it, and to seal and deliver it, when these are essential to its inception. Executed, when spoken of promissory notes, imports delivery as well as making. Bagley v. MoMlekle, 9 Cal 4.30. Execution, when used in a legal sense, with reference to a bond, implies signing, sealing, and delivery. Tiernan w. Eeni- more, 17 Ohio, 545. The expression " an execution executed," in a peculiar statute, held to mean not an execution under which all has been done which the writ requires or the law permits, but au execution levied. Smith v. Young, 12 N. J. L. 300. Executed consideration. A con- sideration which has been received; which is wholly past. Executed contract. Is one which has been perfoi-med. A contract may be exe- cuted by one party only. If the sub- ject-matter mentioned is an instrument as such, to say the contract was exe- cuted, would mean it was subscribed, &c. Executed estate. Means the same as a vested estate, or estate in possession, which are more common expressions. Executed remainder. A remainder which vests a present interest in the tenant, though the enjoyment is post- poned to the future. 2 Bl. Com. 168; Fearne Cont. Rem. 31. Executed trust. One which is com- pletely created, so that no future act is necessary to be done to bring it into effect and operation. Executed use. The first use in a conveyance upon which the statute of uses operates by bringing the possession to it, the combination of which, i.e. the use and the possession, form the legal estate; and thus the statute is said to execute the use. Executed writ. A writ the com- mands of which have been obeyed by the person to whom it was directed. Executory consideration. A con- sideration which has not yet been made or given ; one which is to be performed or rendered in future. Executory contract. A contract which is to be performed in time to come. As some of the stipulations in a contract may require future perform- ance, while others are already performed, it follows that a contract may be exec- utory as to some of its engagements, and executed as to others; executory as to one party, and executed as to the other. Executory devise. A devise of some future interest in lands, given not to take effect immediately upon testa- tor's death, but to arise and vest upon some future contingency. Such a limi- tation of a future estate has been al- lowed to be made by will, in some cases where it could not be made by deed. A similar disposition of chattels should be called an executory bequest. Executory estate. An interest the enjoyment of which is dependent upon some subsequent event or contingency. EXECUTE 460 EXECUTIO Szecutory remainder. The same as a contingent remainder, q. v. Executory trust. Means, not a trust which is yet to be carried into effect as towards the beneficiary, but a trust towards the complete creation of which some act is needed to be done by the creator of the trust, or the trustee. Executory use. A springing use, which confers a legal title answering to an executory devise; as when a limita- tion to the use of A in fee is defeasible by a limitation to the use of B, to arise at a future period or on a given event. The words " executory " and " executed " denote, respectively, incomplete and com- plete ; and that as well in their common-law application to contracts, as in their equity application to trusts. Thus, in the case of contracts, the contract or consideration is said to be executed when it is completely performed ; and it is said to be executory when it is not yet completely, or only incom- pletely as yet, performed. And it is clear that a contract may be executed on one side and executory on the other. And in the case of trusts, a trust is said to be executed when it is completely created or declared ; and executory, when the words of trust are merely directory, and point to some further instrument as being necessary to complete the declaration or creation. Brown. Executed and executory are used 'in law in a sense very nearly equivalent to past (or present) and future, respectively. Thus, 1. A contract may be either executed (as if A and B agree to exchange horses, and they do it immediately ; here the possession and the right are transferred together), or executory (as if they agree to exchange next week ; here the right only vests, and their reciprocal property in each other's horse is not in possession, but in action) ; for a contract executed, which differs nothing from a grant, conveys a chose in possession ; a contract executory conveys only a chose In action. (2 Bl. Com. 443 ; 2 Steph. Com. 58.) 2. So a consideration for a promise may be executed or executory, according as the consideration precedes the promise or not ; and its character in this respect is deter- mined by the relation which it bears in point of time to the promise as being prior or subsequent. 3. A use is also executed or executory. Thus, on a conveyance to A to the use of B, the use in B is said to be executed by the statute of uses. But a use in land, Umited infuturo on a condition independent of any preceding estate or interest in the land, is an executory use, because it is not exe- cuted by the statute of uses till the fulfil- ment of the condition on which it is to take effect. Such a use is also called a spring- ing use. (2 Bl. Com. 332-334; 1 Steph. Com. 544, 545.) 4. So a devise by which a future estate is allowed to be limited contrary to tlie rules of the old common law, is called ah executory devise. (2 Bl. Com. 173, 334; 1 Steph. Com. 611, 612.) 5. Also, an estate in possession, whereby a present interest passes to the tenant, is sometimes called an executed estate, as op- posed to the executory class of estates de- pending on some subsequent circumstances or contingency. (2 Bl. Com. 163.) 6. A trust may also be executed or ex- ecutory. An executed trust is one where tlie trust estate is completely defined in the first instance, no future instrument of con- veyance being contemplated. An executory trust is a trust wliere the party whose ben- efit is designed is to take through the me- dium of a future instrument of conveyance, to be executed for the purpose. (1 Steph. Com. 374. ) Or, an executory trust is one of which the author indicates, either by the vagueness and generality of the words he has used, or by his intention expressed in the instrument creating the trust, that some fur- ther conveyance should be executed for ex- pressing the trusts in proper legal form; while an executed trust is a trust itself expressed in proper legal form. An executory trust thus bears to an executed trust the same relation which the heads of a settlement bear to the settlement itself. Mozley Sf W. All trusts are in a sense executory ; be- cause a trust cannot be executed except by conveyance, and therefore there is always something to be done. But that is not the sense which a court of equity puts upon the term executory trust. An executory trust is where the author of the trust has left it to the court to make out from general ex- pressions what his intention is. An exe- cuted trust is where there is nothing to be done but to take the limitations given you, and convert them into legal estates. Eger- ton V. Brownlow, 4 Ho. rfL. Cas. 210. As all trusts are executory in the sense that the trustee is bound to dispose of the estate according to the tenor of his trust, whether active or passive, it would be more accurate and precise to substitute tlie terms perfect and imperfect for executed and ex- ecutory trusts. 1 Hayes Conv, 85. EXECUTIO. The Latin term for execution, used, according to BurriU, in both the senses of complete perform- ance of something, and of a writ for carrying a judgment into effect. Ezecutio est finis et fructus legis. Execution is the end and fruit of the law. The proper completion of and the object sought in a suit is the execution. The execution is the end of the law ; it gives the successful party the fruits of his judgment. A distress warrant is a most effective execution ; for it may act on both the body and estate of the individual agamst EXECUTION 461 EXECUTIVE whom it is directed. So powerful a process must not be issued by a mere ministerial officer independent of judicial review. Unit- ed States V. Nourse, 9 Pet. 8, 28. Ezecutio juris non habet Injuriam. The execution of the law does not work a wrong. The bringing of an action without malice and upon a probable cause, in a court having jurisdiction, or any act done in the regular course of legal proceedings, or under authority of legal process regularly issued in an action, is not deemed an injury for which the law should afford a remedy, even though such action is brought upon insufficient grounds or against the wrong party; if damage result, it is damnum absque injuria. It is only where an ac- tion is brought maliciously and without probable cause ; where an illegal act is done under color of the law; where legal process is abused for purposes of oppression or extortion; or in similar cases of proceedings not really sanc- tioned by the law, although in legal form, — that liability is incurred for acts either of an officer or a private individ- ual in an executive capacity in the course of legal proceedings. EXECUTION. 1. The completion or perfection of a written instrument, by the signature of the party, and the delivery. 2. The doing or performance of some- what called for by a contract, judgment, writ, &c. 3. The technical name of the writ principally used to carry into effect a judgment or decree. And see Exe- cute. By " execution of a note," in a rule of court excusing plaintiff, in certain cases, from producing proof of execution, is meant only the actual making and delivery. It does not involve other matters, such as an allegation that tlie note was dated back in order to include usurious interest. Free- man V. Ellison, 37 Mich. 459. Delivery is a part of tlie execution of a sealed instrument. A bond signed and sealed on Sunday, but not delivered until a week-day, is good ; for it is not executed on Sunday. State v. Young, 2.3 Minn. 551. Although " executed " imports delivery, in addition to signing and sealing, yet a certificate of acknowledgment that one has " signed and sealed " a deed may be sustained as a substantial compliance with a statute requirement that it should say "executed," the substituted words being evidently used in the broad sense. Little V. Dodge, 32 Ark. 453. Execution is a judicial writ issuing out of the court where the record or other judicial proceeding is on which it is ground- ed. It usually issues at the end of four- teen days from the verdict, but it may for good reason be either expedited or delayed ; and it may issue within six years after the recovery of the judgment, without getting the judgment revived. It is either &fi.fa., an elegit, or a ca. sa. ; and the plaintiff may sue out either he pleases, and, after suing out one, he may abandon it before execu- tion and sue out another ; or he may even have several writs running at the same time, either of the same species into differ- ent counties, or of different species into the same or different counties. But only one of such writs must be actually executed. If part only of the amount be levied on the one writ so actually executed, then the writ must be returned; and after the return another writ may issue. By the common-law procedure act, 1852, § 121, the writ should be directed to the sheriff of the county in which it is to be executed. If it is to be executed within a liberty or franchise, it must be directed to the sheriff of the county in which such liberty or franchise is situate. And by section 134 of the same act, the writ, if un- executed, does not remain in force for more than one year from the teste of the writ, unless it is renewed. Brown. EXECUTIVE. In the distribution of the powers of government into the three great classes, that power which secures the due performance of the laws is termed the executive power. And the word is often used in the United States as an impersonal title of the president or governor; thus, a fugitive is said to be surrendered on the demand of the executive of the state from which he fled. Executive admimstration, or min- istry. A political term applicable to the higher and responsible class of public officials by whom the chief departments of the government of the kingdom are admin- istered. The number of these amounts to fifty or sixty persons ; their tenure of office depends on the confidence of a majority of the house of commons ; and they are sup- posed to be agreed on all matters of general policy except such as are specifically left open questions. Cab. Lawyer. Executive department. See De- partment. Executive o£Bcer. This phrase in- cludes that class of officers who are con- cerned with the execution of the laws, as distinguished from legislative and EXECUTOR 462 EXEMPLARY judicial officers. Some classifications make two classes of officers in the exec- utive department of government, — ex- ecutive and administrative. Executire officer means an officer in whom resides the power to execute the laws. Thome c San Francisco, 4 Cat 127, 146. EXECUTOR. A man appointed, in virtue of his being named for that office in a will, to can-y its provisions into effect. Executrix: a woman so ap- pointed. If the will names no one as executor, or the person named refuses to act, or dies, some suitable person is appointed by the court of probate to superintend the execution of the will ; but such per- son is not styled an executor, but an administrator with the will annexed. An executor is the legal personal rep- resentative of his testator, and the tes- tator's rights and liabilities devolve for the most part upon him. His duties, generally stated, are: To bury the de- ceased in a manner suitable to the estate which he leaves. To prove the will. To make an inventory of the goods and chattels of the deceased, and col- lect the goods so inventoried; and, for this purpose, if necessary, to take pro- ceedings against debtors to his testator's estate. To pay, first, the debts of his testator, and then the legacies bequeathed by his wiU ; and to distribute the residue, in default of any residuary disposition, among the next of kin of the testator. An executor rightfully or lawfully ap- pointed is sometimes called a lawful or rightful executor, to distinguish him from an executor de son tort, an execu- tor in his own wrong ; who is a person who has thrust himself in, without law- ful authority, to manage affairs of the estate. For, upon familiar principles of probate law, a person intermeddling with the estate of a deceased person, and doing acts which an administrator or executor alone may do, will make himself liable as executor de son tort. Bennett v. Ives, 30 Conn. 329; Bacon v. Parker, 12 Id. 213; Wilson v. Hudson, 4 Harr. 168; Howland v. Dews, R. M. Charlt. 383 ; Semmes v. Porter, Dudley, 167; Wiley M. Truett, 12 Ga. 588; Bar- ron V. Burney, 38 Id. 264; Brown v. Durbin, 5 J. J. Marsh. 170; Johnson i'. Duncan, 3 Liu. 163; Gentry v. Jones, 6 J. J. Marsh. 148; White v. Mann, 26 Me. 361 ; Leach v. Pittsburg, 15 N. H. 137; Emery v. Berry, 28 Id. 473; Sco- ville V. Post, 3 Edw. 203 ; Crinkleton ». Wilson, 1 Brovme, 361; Howell m. Smith, 2 McCord, 516 ; Givens v. Higgins, 4 Id. 286; Hubble v. Fogartie, 3 Rich. 413. For numerous cases in which this doc- trine applies, see U. S. Dig. tit. Ex- ecutors and administrators. Ezempla illustrant non restringunt legum. Examples illustrate but do not restrict the law. Instances of the ap- plication of a legal principle illustrate the reason and the operation and effect of the rule, but do not restrict it to the facts of the particular case. EXEMPLARY DAMAGES. Money which juries are allowed, in certain actions, to award to the plaintiff, additional to a compensation for his pecuniary loss, by way of compelling defendant to atone for a wrong done. The propriety of allowing damages by way of punishment has been strongly contested, many able jurists and writers contending that, in the civil action by the person injured by a wrong, the damages ought in all cases to be re- stricted to a compensation for the loss sustained, and that all considerations of punishment should be reserved to be determined in some prosecution at the suit of government. A well known and instructive discussion, between Mr. Sedg- wick, in favor of the rule allowing exem- plary damages, and Judge Greenleaf , in favor of restricting damages to compen- sation, may be found in the successive editions of their treatises on Damages and Evidence. The weight of authority throughout the United States seems to be, that, in a proper case, damages to punish the defendant may be allowed. Exemplary damages is perhaps the most common name for these ; but they are also known as " smart-money," "punitive damages," and "vindictive damages." Under these various names the pro- priety of allowing such damages has been often discussed; and the general result of the cases seems to be to sustain, in nearly all the states, the rule, that, when- EXEMPLARY 463 EXEMPT ever the injury is shown to have been inflicted wantonly or maliciously, and with circumstances of contumely or in- dignity, the jury are not limited to the ascertainment of a simple compensation, but they may award an additional sum, as a punishment of or atonement for the wilful malicious wrong. But malice, in this rule, is not merely the intentional doing a wrongful act : the word is used as implying an actual design to injure or to violate law. See U. S. Dig. tit. Damages, I. 4. To meet the objection that the prac- tice of allowing such damages leads to a double punishment, Judge HoSman, of ' the New York superior court, in Fry v. Bennett, 1 Abb. Pr. 304, gave a very close and guarded statement of the rule, distinguishing between punishing the wrong done to the plaintiff, which he urges is the sole object, and therefore the limit, of exemplary damages, and vindicating the peace of society, which is the object of criminal punishment. He says: "When the terms vindictive damages or exemplary damages are em- ployed in a civil action for libel, they mean the atonement which the law de- mands shall be made to the libelled party by the offender;' and such atone- ment involves essentially his punish- ment. It is condemnation, and inflic- tion for traducing the individual, not for provoking him to break the peace. It would be objectionable, in this view of the case, to instruct a jury to give damages, on the ground that the inter- ests of society required the defendant's punishment, or that they could consider the offence to the state as a reason for increasing the damages." Two recent cases in New Hampshire, Fay V. Parker, 53 N. H. 342, which contains a most elaborate and extended review of the authorities, and Bixby ti. Dunlap, 56 N. H. 456, discuss the ques- tion in the light of the same distinction as was urged in Fry v. Bennett; and present the true rule as being this : that compensation is the primary rule of damages, but, when actual malice enters into the tort, damages to punish it may be allowed, for the purpose, really, of making atonement to the sufferer for the injury to the feelings and other ele- ments of his damage, which are not sus- ceptible of direct pecuniary valuation; but such allowance must never be car- ried so far as to embrace or take the place of punishment of the tort as a public offence. According to Bixby v. Dunlap, it is incoiTect to encourage the jury to separate actual from exemplary damage. The true rule is, not for the jury first to determine the actual money damage which plaintiff has sustained, and then, if they find the defendant has been malicious, give another separate sum in damages by way of example or punishment; but they should be told that, if they find the defendant has been malicious, the rule of damages will be more liberal. Then, instead of awarding damages only for those matters which are capable of pecuniary valuation, they may take into consideration all the cir- cumstances of aggravation, the insults, offended feelings, degradation, &c., and endeavor, according to their best judg- ment, to award such damages by way of compensation or indemnity as on the whole the plaintiff ought to receive, and the defendant to pay. Damages thus enhanced, to give a full compensation for the injury attending a malicious offence, are sometimes called vindictive, because they have a tendency to satisfy the just indignation of the plaintiff and the jury; sometimes exemplary, because they call public attention to the wrong and the remedy; sometimes punitory, because, although intended by law to operate as compensation, they are likely to be felt by defendant as a punishment. EXEMPLIFICATION. An official transcript of a document from public records, made in form to be used as evidence, and authenticated as a true copy. EXEMPT, V. To except or excuse from the operation of a law. Exempt, a. : the condition of being excepted or ex- cused; and this word is often used as a noun, to denote a person excused by law from the performance of a duty or obligation imposed on others, as from jury duty or military Service. Exemp- tion: a privilege of being excepted from, or free of the operation or burden of, some law. Probably the most frequent use of EXEQUATUR 464 EXISTING these words is in connection with the laws governing executioir against prop- erty: they generally allow a debtor to retain certain necessary ai'ticles as " ex- empt from execution." EXEQUATUR. A rescript or order given by the foreign department of a state to which a consul or commercial agent is accredited, authorizing the functionaries of the home department to recognize the official character of the consul. EXHIBIT, V. To produce publicly, for inspection; also, to submit to a court or officer, in course of proceedings. Exhibit, n. : a document produced and identified for future use as evidence. In chancery practice, when testimony of witnesses was taken by an examiner in the form of depositions, to be after- wards submitted to the chancellor at the hearing, it was necessary, when docu- ments were involved in the testimony, to exhibit them to the witness and ex- aminer. ThB witness having identified them, the examiner marked them as having been exhibited upon the ex- amination. They could then be pro- duced before the chancellor, and identi- fied by the examiner's marks as the same papers as were referred to by the wit- ness; hence the name exhibits. The same method is pursued when documents are introduced on a jury trial or before a referee, and need to be iden- tified for purposes of any appeal. More- over, when documents are referred to in a pleading, and annexed, instead of being copied in fuU in the body of the pleading, they are usually referred to as exhibits. If several exhibits are intro- duced, they are usually distinguished by letters, — exhibit A, exhibit B, &c. In equity practice, in stating written in- struments in a pleading, it is usual to refer to the instrument itself. This reference makes the whole instrument referred to a part of the pleading. But it does not make it evi- dence : to do that, the instrument must be proved in the usual way. The sole office of an exhibit is to help out the pleading, in case it should he found, on the trial, that the allegations therein do not give some needed particulars of the writing, or do not give the writing with suflScieut accuracy. Brown v. Redwyne, 16 Ga. 67. The use of exhibits is a convenient mode of abridging evidence in the case of written documents, the proof being either viva voce or by affidavit. But only some documents may be exhibited, namely, extracts from registries, records from the Bodleian and Museum libraries, and generally all docu- ments coming out of the custody of a pub- lie officer having care of them \ also, office- copies of records, whether of the superior courts at Westminster or of the courts of the county palatine of Lancaster, or of the inferior courts of record ; also, and chiefly, deeds, bonds, notes, bills of exchange, let- ters, or receipts, and the like. Documents of other kinds may not be so proved ; and, generally, no document may be proved as an exhibit, if it requires more to substan- tiate it than the proof of the execution or of handwriting, e.g. t£ any ulterior circum- stance which might affect it requires to be proved, and the opposite side would have a right to cross-examine upon that circum- stance. (Lake w. Skinner, IJac.^ PT. 9,15.) ' Brown. The presentment of a complaint, and the issuing of the warrant by the magistrate, is a sufficient exhibiting of it, within the Con- necticut statute of limitations, although the arrest may not be made until after the expiration of the time limited. Newell v. State, 2 Cmn. 38. Exhibition, in Scotch law, signifies the production of deeds ; and an action of ex- hibition is an action for compelling produc- tion of the same. Bdl; Pat. Comp. EXIGENT. The name of a vrrit in proceedings before outlawry, directing the sherifE to cause to be demanded the defendant from county court to county court, until he be outlawed; or, if he appear, then to take and have him be- fore the court on a day certain, to an- swer to the plaintiff. At the same time issued the writ of proclamation of exi- gents, which was followed, if the de- fendant was not taken and did not ap- pear, by the writ of capias utlagatum. Ezigi facias. That you cause to be demanded. The emphatic words of the Latin form of the writ of exigent. They are sometimes used as the name of that writ. EXILIUM. Exile; banishment. In ancient English law, this term was ap- plied to a species of waste, having refer- ence to persons by sending them away or driving them from the land ; such as setting free or wrongfully ejecting bond- servants or bond-tenants, or pulling down buildings so as to compel the oc- cupants to leave, or other acts having the same tendency and purpose. EXISTING. The phrase existing laws, in the saving clause of an act, refers to the laws in existence at the time of the k^ EXONERETUR 465 EXPERT passage of the act. Lawrie v. State, 5 Ind. 5^5. The operation of a law for regulating " all existing railroad corporations," ex- tends to and controls railroads incorporat- ed after, as well as before, its passage, un- less exception is provided in their charters. Indianapolis & St. Louis B. K. Co. v. Black- man, 63 lU. 117. The phrase existing creditors, in Iowa Code 1873, § 1923, regulating the recording of sales or mortgages of personal property, is not limited to those who were creditors when the sale was made : it applies eq^ually to those who became such before posses- sion was changed, the bill of sale recorded, or notice given. Fox v, Edwards, 38 Iowa, 215. EXONEBETUR. Let him be dis- charged. The name of an entry on a bail-piece, that the bail are exonerated or discharged, made by order of the court or judge, upon proper cause shown, as the surrender of their principal, or other performance of the condition of the obligation. EXPATRIATION. The act of an individual in forsaking his own country, with a renunciation of allegiance, and ■with a view of becoming a permanent resident and citizen in another country. Whether this can rightfully be done ■without consent of the country aban- doned has been the subject of much dis- cussion. By act of July 27, 1868, congress de- clared the policy of the United States on the subject as foUo-ws: Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness ; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship ; and whereas it is claimed that such Ameri- can citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed : Therefore, any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatria- tion, is declared inconsistent with the fundamental principles of the republic. All naturalized citizens of the United States, while in foreign countries, are enti- tled to and shall receive from this govern- ment the same protection of persons and property which is accorded to native-born citizens. Rev. Stat. §§ 1999, 2000. VOL. 1. 30 EXPECTANT ESTATE. An es- tate in lands, consisting of a present vested contingent right of future enjoy- ment; the right to pernancy of the prof- its, although vested, being contingent, and postponed to a future time. Es- tates in remainder and in reversion (q. V.) are expectant estates. The term future estates is also applied to this class of interests in lands. Expectant estates, as used in 1 N. Y. Kev. Stat. 725, § 35, includes every present right or interest wliich may by possibility vest in possession at a future day. Law- rence V. Bayard, 7 Paige, 70, 76 ; Underbill V. Saratoga, &c. E. R. Co., 20 Barb. 455, 462. Ezpedit relpublicee ut sit finis litl- um. It is for the advantage of the state that there be an end of suits ; the pub- lic good requires that some period be put to litigation. More frequently expressed in the form, interest reipuUicm 'ut sit finis litium, q. v. EXPENSE. A promise to pay half the expense of building a wharf, is not a prom- ise to pay whatever may be spent about it, but whatever it may reasonably cost. One sued for contribution may ahow that a larger amount was paid than was justly due. Snow v. Johnson, 1 Minn. 48. Under a written contract to pay a cer- tain proportion of the net profits of an ad- venture after dediicting "the actual ex- penses that may appertain to the goods themselves," expenses for clerk-hire, adver- tising, and taxes may properly be deducted from the gross amount. iFoster v. Goddard, 1 Clif. 158. Expenses, in a will, is never taken to signify expenses incurred during the life of the testator : these would be debts. Matter of Haines, 8 N.J. Eq. 506. EXPERT. Originally, experienced; practiced; skilful. By a familiar rule of evidence, vrhen questions requiring skill or knowledge in art or science are involved in the issue, persons possessing such skill or knowledge may be called as witnesses, and allowed to give their opinions on the question presented; such witnesses are called experts. An expert is a person who possesses pe- culiar skill and knowledge upon the sub- ject-matter that he is required to give an opinion upon. State v. Phair, 48 Vt. 366. An expert is a skilful or experienced person; a person having skill or experi- ence, or peculiar knowledge on certain sub- jects, or in certain professions ; a scientific witness. Heald v. Thing, 45 Me. .392; Clark o. Rockland Water Power Co., 52 Id. 68. An expert must have made the subject EXPLOSION 466 EXPRESS npon which he gives his opinion a matter of particular study, practice, or observa- tion, and he must , have particular and spe- cial knowledge on the subject. Jones v. Tucker, 41 N. H. 547. The science which an expert should be required to possess, implies that special and peculiar knowledge acquired only by a course of observation and study, and the expenditure of time, labor, and prepara- tion, in a particular employment and call- ing of life. Dole v. Johnson, 50 A'. H. 452. On a question of handwriting, a witness who, by study, occupation, or habit, has been skilful in marking and distinguishing the characteristics of handwriting, may be an expert, although he had never been in a situation where duty required him to dis- tinguish between genuine and counterfeit handwriting. Sweetser v. Lowell, 33 Me. 446. EXPLOSION. Injuries to a building insured, caused by an explosion of spirit- vapor accumulating in the building and be- coming mixed with the atmosphere, and the mixture being ignited from a gas-jet, are within an exception in a policy of insurance, of losses caused by " any explosion what- ever." The word explosion is variously used in ordinary speech, and is not one that admits of exact definition. Every combus- tion of an explosive substance, whereby other property is ignited and consumed, would not be an explosion within the ordi- nary meaning of the term. It is not used as a synonyme of combustion. An explo- sion may be described generally as a sudden and rapid combustion, causing violent ex- pansion of the air, and accompanied by a report. But the rapidity of the combustion, the violence of the expansion, and the vehe- mence of the report, vary in intensity as often as the occurrences multiply. Hence, an explosion is an idea of degrees ; and the true meaning of the word, in each particu- lar case, must be settled, not by any fixed standard or accurate measurement, but by the common experience and notions of men in matters of that sort. United Life, &c. Ins. Co. V. Foote, 22 Ohio St. 340. See FlEB. EXPORT, V. To carry or send out of the countiy ; the opposite of import. Exportation : the act of carrying or send- ing abroad. Exports, n. , and sometimes exportations : things sent abroad; sub- ject-matter of exporting. The words are used almost exclusively of merchandise sent from one countiy to another in the adventures of commerce. Export signifies the taking or carrying out an article of trade or commerce. State V. Turner, 5 Harr. 501. Exportation is the carrying of goods out of a port to a foreign country, and does not include a coastwise transportation, before the period of exportation commences ; the period of exportation is the termination of exportation. Forman v. Feaslee, 11 Monthly Law Rep. k. b. 273. Exports, as used in U. S. Const, art. 1, §§ 8, 10, embraces only articles exported to foreign countries, and does not include those transported from one state into an- other. Exp. Martin, 7 Nev. 140. EXPOSE. To exhibit; to show. Eziposure of the person, that is, of the parts which decency requires should be kept clothed in public, is an indictable oflence, on the ground that every public show and exhibition which outrages de- cency, shocks humanity, or is contrary to good morals, is punishable at common law. 2 Bish. Cr. Law, § 318. Expose to sale. Means to show to the by-standers. A statute authorizing an ex- press company to expose unclaimed goods to sale, does not import authority to sell goods in locked trunks. Adams Express Co. V. Schlessinger, 75 Pa. St. 246. EXPRESS. Declared in terms; dis- tinctly mentioned; openly stated; set forth in words. Express is generally used as the oppo- site of implied; as actual is opposed to constructive. Thus, an express assump- sit or contract is a contract which is made in terms, not left to implication; an express repeal is where a statute refers to and declares the repeal of an- other, instead of leaving the courts to deduce the repeal from the inconsistency of the two laws. Express trust is a trust declared in terms, not raised by rules of law from the dealings of parties. Express warranty is a warranty made in terms, as distinguished from one which may be implied. Express malice is a phrase sometimes used, but not to be approved : actual malice better gives the meaning; which is, not malice which has been avowed or declared, but malice shown to have ex- isted in emotion, as distinguished from a design merely imputed. But see 4 Bl. Com. 198, 200. Express trusts are those which are cre- ated in express terras in the deed, writing, or will, while implied trusts are those which, without being expressed, are deducible from the nature of the transaction, as matters of intent, or which are superinduced upon the transactions by operation of law, as matters of equity, independently of the particular intention of the parties. Brown v. Cherry, 66 Barb. 635. EXPRESS COMPANY. A firm or EXPRESSIO 467 EXPRESSIO corporation making it their business to receive and transport packages of port- able property. These ai-e, by the weight of authority, common carriers. They cannot be discriminated from other car- riers by a precise line of legal definition, but are practically distinguished by such peculiarities as these : They do not usu- ally own or operate the vehicles in which the transportation is made, but rely on those of common carriers, in which their agents, with goods in charge, travel back and forth. They seek more particularly the business of carrying the lighter and more valuable kinds of property. They offer assurances of gi-eater expedition in carrying and care in delivery. They combine with carrying the transaction of other business incidental to it ; as the collection of the price due upon goods sold and intrusted to them for delivery. Szpressio eorum quae tacite insunt nihil operatur. The expression of things which are tacitly implied avails nothing. A clause in an instrument which merely expresses what is tacitly implied by the law is inoperative, and is treated in construction as mere sur- plusage. An illustration of this maxim frequently given is the case of a lease to two persons for the term of their lives, which, at common law, creates a joint tenancy; if the words " and the survivor of them" are added, such words are mere surplusage, because, by law, the term would go to the survivor. In bills of exchange and promissory notes, the words value received ex- press only what the law will imply from the nature of the instrument and the re- lation of the parties apparent upon it. Those words are regarded as surplusage, and do not prevent inquiry into the con- sideration of the bill or note, as between the immediate parties thereto. Expressio unius est ezclusio alte- rius. The expression of one thing is the exclusion of another; the express mention of one thing, person, or place, or of a particular class or number, im- plies the exclusion of aU. othei-s not men- tioned. This maxim is of general ap- plication in the construction of contracts and written instruments, and in the in- terpretation of statutes, but is subject to some limitations. The general principle is, that, where parties have expressed the conditions or terms or stipulations of their acts or engagements, they are pre- sumed to have expressed all such terms or conditions, and not merely a part of them. The application of the maxim is, however, subject to the intention of the party as discoverable upon the face of any particular instrument or transaction, which intention, when apparent, must prevail. The rule of law excluding parol evidence as to the terms of a writ- ten instrument, unambiguous upon its face, is founded upon the same or a very similar principle, expressed in the max- im, expressum facit cessare taciturn, con- sidered by Mr. Broom as merely another form of this maxim. Broom Max. 651. A frequent application of the general principle is to restrict the meaning of general words within the limits de- fined by more particular and specific expressions accompanying them. An example in the construction of deeds is the rule that an implied covenant is to be controlled within the limits of an ex- press covenant, on the same subject. Especially, aft^r an enumeration of par- ticular things, words of a general nature following are to be taken, by reference to the preceding enumeration, to include only things ej'usdem generis. In the in- terpretation of statutes, also, this maxim is of general application ; subject, how- ever, to the intention of the legislature as the chief guide to the construction. Moreover, where the language of a stat- ute may fairly comprehend many differ- ent cases, and some only are expressly mentioned merely by way of example, others, of a similar nature, are not there- by excluded. So, where the words used by the legislature are general, and the statute is only declaratory of the com- mon law, it may extend to other persons and things beside those actually named. But where the expressions used are re- strictive, and intended to exclude all things not enumerated, the maxim is to be applied. Thus, a statute by which a tax or charge is imposed upon certain specific things would seem intended to exclude every thing else even of a similar nature, and, a fortiori, all things different in nature and description from those which are expressed. Broom Max. 664. EXPRESSUM 468 EXTINGUISHMENT Ezpressum facit cessare taciturn. That which is expressed supersedes that which is not mentioned. Express stipu- lations cannot be controlled by mere im- plications, or by other matters left unex- pressed in the agreement or instrument. A familiar illustration of this maxim is the rule excluding parol evidence to con- tradict or vary the terms of an instrument in writing. The principle extends to all cases of express contracts. It is not necessary that the parties to every agreement should provide in terms that they are not to be bound by any thing not expressly set down. Compare the maxim, expressio unius est exclusio al- terius. EXPROPRIATION. The surrender of a claim to exclusive property. Wharton. In French law, expropriation is the compulsory realization of a debt by the creditor out of the lands of his debtor, or the usufruct thereof. Wlien the debtor is co-tenant with others, it is necessary that a partition should first be made. It is con- fined, in the first place, to the lands (if any) that are in hypotheque, but afterwards ex- tends to the lands not in hypotheque. More- over, the debt must be of liquidated amoimt. Brown. EXPULSION. Removal from mem- bership. In the older and stricter use of the terms, it signified the depriving a mem- ber of a corporate body or society of non- political rights of membership ; and was distinguishable from amotion (j. v.), and disfranchisement (q. v.). It is applied to a termination of mem- bership in a legislative body, by vote of the body, founded upon charges against the member involved. EXTENSION OF PATENT. A privilege accorded by the former patent laws, whereby the patentee of an ordi- nary patent, upon proof that, without neglect or fault on his part, he had failed to obtain a reasonable remuneration for the time, ingenuity, and expense be- stowed upon the invention, and on the introduction thereof into use, might ob- tain an extension of such patent for the term of seven years longer ; the term for which original patents were granted be- ing then fourteen years. By act of con- gress of 1861, the term for which pat- ents for inventions are at first issuable is enlarged to seventeen years, and ex- tensions are disallowed. Patents for designs are issued for shorter terms, and may be extended. EXTENT. 1. A writ, in the nature of an execution, by which lands of the debtor, instead of being sold, are valued and set off to the creditor, either abso- lutely or for a term during which their rental may be sufficient, as a satisfaction of his judgment.: Such a proceeding is of English origin, and has been in use in some of the United States. • 2. In England, extent is a writ avail- able in cases in which the crown has an interest. The extent may either be an extent in chief or an extent in aid, the distinction being that the former is a hostile proceeding by the crown against its debtor, or against the debtor of that debtor; while the latter is an extent is- sued at the instance of the crown debtor himself against his debtor, to aid his payment of the crown debt, — the advan- tage of it arising from the rule that the crown has priority over all executions of the subject. Extents are of several kinds, as follows : A process of execution under the laws re- lating to statutes-staple and statutes-mer- chant, by which the lands and goods of a person whose recognizance had been for- feited, or whose debt had been acknowl- edged on statute-staple or statute-merchant, might be appraised and delivered to the creditor. (3 Bl Com. 419, 423; 1 Steph. Com. 309; 3 Id. 66£f.) An extent m chief, which is a writ issuing out of the court of exchequer, for the recovery of debts of record due to the crown; by which the sheriff is directed to cause the lands, goods, and chattels of the debtor to be appraised at their full value, and to be seized into the hands of the sovereign. An extent in aid, issued at the suit or instance of a crown debtor against a person indebted to the crown debtor himself. A special writ of extent, directing the sheriff to seize the lands and goods of a deceased crown debtor. This writ Is called diem clausit extremum. (3 Bl. Com. 420 ■,Siitepk. Com. 662-668.) An ancient valuation put upon lands in Scot- land, for the purpose of proportioning the shares of the public taxes, as well as for fixing the "casualties of superiority." (Bell.) MozleySrW. EXTINGUISHMENT. The anni- hilation or extinction of a right or obli- gation. Eztinguisbment of common, is a destruction or termination of a right of common, q. v. Extinguishment of copyhold. Ja^- EXTORTION 469 EXTRACT cob says it is a general rule that any act by the copyholder which denotes his intention to hold no longer of his lord, and amounts to a determination of his wiU, is an extinguishment of his term. Wharton says that when a tenant con- veys to his lord, or does an act denoting his intention of not holding of his lord any longer, his copyhold is extinguished; when the lord is the active party, an en- franchisement is effected. Eztinguiahment of debts, takes place not only by payment, but in sev- eral other ways, — as where the creditor accepts a higher security, or recovers a judgment; where he gives a release; where he unites in an accord and satis- faction. Extinguishment of an estate, may take place where a less estate is merged in a greater one ; as when one who has a term for years in land acquires the fee, this extinguishes his estate for years. Eztiuguishment of a 'way, may be affected by a purchase, by the owner of the right of way, of the land over which the way lies. EXTORTION. In the strict sense of the criminal-law authorities, extor- tion is the offence committed by an officer who corruptly claims and takes, as his fee, that to which he is not en- titled. Extortion is an abuse of public justice, which consists in any officer's unlawfully taking, by color of his office, from any man, any money or thing of value that is not due to him, or before it is due. 4 Bl. Com. 141. Extortion is any oppression under color of right. In a stricter sense, the taking of money by any officer, by color of his office, when none, or not so much, is due, or it is not yet due. 1 Hawk. PL Gr. (Curw. ed.) 418. It is the corrupt demanding or receiving by a person in office of a fee for services which should be performed gratuitously; or, where compensation is permissible, of a larger fee than the law justifies, or a fee not due. 2 Bhh. Cr. L. § 390. The distinction between bribery and ex- tortion seems to be this : the former offence consists in the offering a present, or receiv- ing one, if offered; the latter, in demand- ing a fee or present, by color of office. Jacob. Extortion, in its stricter sense, is the taking of money by an officer, by color of his office, either where none at all is due, or not so much is due, or when it is no* yet due. It is not necessary to charge that it was taken as fees to his own use. People V. Whaley, 6 Cow. 661. The exacting payment of a fee by an officer before It is due, constitutes extor- tion. Commonwealth v. Bagley, 7 Pick. 279. Extortion is the taking, by color of an office, money, or other thing of value, that is not due, before it is due, or more than is due. Williams v. State, 2 Sneed, 160. EXTRA. This Latin word, mean- ing beyond, outside of, occurs in sev- eral phrases and compound words. Eztra costs. A term which seems to be applied in English practice to those charges which do not appear upon the face of the proceedings, such as wit- nesses' expenses, fees to counsel, attend- ances, court-fees, &c., an affidavit of which must be made, to warrant the master in allowing them upon taxation of costs. Eztra-dotal property, is used in Louisiana to designate property which forms no part of the dowry of a woman. La. Civ. Code, art. 2315. Extra-judicial. Beyond jurisdiction. An act or decision by a judge or court, beyond its proper authority in a cause before it, is called extra-judicial. Extra-parochial. Out of any parish ; any thing privileged and exempt from the duties of a parish. Extra quatuor maria. Beyond the four seas. Out of the realm of Great Britain; beyond the jurisdiction. See Beyond Sea. Extra services, when used with ref- erence to officers, means services inci- dent to the office in question, but for which compensation has not been pro- vided by law. Commissioners of Miami County t). Blake, 21 Ind. 32. Extra-territorial. Beypnd the ter- ritory. A law which should be allowed to operate beyond the territory of the government by which it was passed, would be said to operate extra-territo- rially. Extra viam. Outside the way. The substantive words of a replication used in the common-law action of trespass, where the defendant having pleaded a right of way in justification of the tres- pass alleged, the plaintiff desired to set up that the trespass was beyond the limits of the way alleged. EXTRACT. Signifies, usually, a EXTRADITION 470 EXTRADITION portion of a book or document, sepa- rately transcribed. In some cases, extracts from public books are received in evidence; as, ex- tracts from the registers of births, mar- riages, and burials, kept according to law, when the whole of the matter has been transcribed which relates to the cause or matter in issue. To some extent, extracts are allowed to be made, by authors and compilers, from works previously copyrighted and published;- this, within limits, is not deemed an infringement of the prior copyright. EXTRADITION. The delivering up, by one government to another, of an individual who has fled to the terri- tory of the latter, to escape the operation of the laws of the former. As respects the United States, cases of extradition are of two classes. One class comprises persons who have fled from one of the United States or or- ganized territories, to take refuge in . another; the other class comprises per- sons who have fled from foreign coun- tries, to take refuge anywhere within the United States. Cases of the latter class are practically governed by provisions of treaties between the United States and foreign countries, and acts of con- gress passed to carry those treaties into effect. Cases of the former class arise under a provision of the constitution, and statutes passed pursuant to it, which, probably, may be invoked in the case of a fugitive apprentice, Boaler v. Cum- mines, 1 Am. Law Reg. 654; but are of use and importance only in respect to fugitives from penal justice. Extradition of offenders who have fled to this country to escape the justice of a foreign government lies between the government of the United States, considered as a homogeneous national sovereignty, and the foreign government making the demand. The states, as such, are not concerned. If the fugitive is captured within a state, the surrender is an act of national sovereignty, which the United States government alone, as the foreign affairs of this country are practically administered, is accustomed to perform. Holmes v. Jennison, 14 Pel. 540, 3 Oj). Att.-Gen. 559; Exp. Holmes, 12 Vt. 631. If he' is to be given up from a territory or from the District of Columbia, the sovereignty of congress over those places aids the surrender. I. International Extradition. An underlying question here is whether extradition is a right and duty, or is it a voluntary practice only, a creature of national compact. The general question, whether by the principles of the public law of nations an escaped criminal must or may be de- livered up, by the nation in whose ter- ritory he has sought refuge, to the one whose laws he has violated, has been much discussed, and appears to be un- settled. Earnest and able opinions have been pronounced upon both sides. See 1 Kent Com. 36, and notes in later editions; Wheat. Int. Law, Lawrence's and Dana's editions; 3 Story Const. 675; Story Confl. L. 520. The advance which has been made in recent years in the adoption of systematic extradition trea- ties has much diminished, for the United States at least, the importance of an in- quiry as to the propriety of an extradition independent of treaty; and that question may very probably always remain un- resolved by any controlling authority. It ought, however, when discussed, to be considered in three distinct branches: 1. Is one nation under obligation, by public law, and independent of a treaty, to deliver up the fugitive criminals of another ? Upon this branch of the ques- tion the weight of authority and of rea- son seems to us to be that there is not any such obligation. No nation can de- mand from another the surrender of a fugitive, as matter of right, unless the right has been conceded by treaty. 2. A nation not being deemed under obligation to surrender a fugitive, is she authorized or at liberty so to do, if com- ity or reasons of political expediency incline her to grant a request for a sur- render; or is the surrender an act of tyranny, beyond the proper functions of government, in a case where no treaty demands it? On this branch the true answer seems to be that the sovereign power may, for wise reasons, in the par- ticular case, surrender persons charged with the graver crimes, with offences EXTRADITION 471 EXTRADITION- recognized as such by the laws of civil- ized nations. The general right of asy- lum conceded to those who remove their domicile to a new country does not ex- tend so far as to forbid the adopted country from returning the individual, upon reasonable proof that he came in evasion of the criminal laws of his na- tive land, if she sees fit. 3. An abstract authority to surrender a criminal being assumed, in whom, in what tribunals or oflacers, is its exercise vested? This must depend oh the constitution of gov- ernment, or the positive law of the realm. Thus it may be that sovereignty, as it exists in the United States government, can authorize a surrender indepfendent of a treaty, and yet that a particular court or a particular offloer, even the president, has not yet been empowered to exercise that authority. The current of opinion in the United States has been that the government disclaims any obligation to surrender fugitives from foreign countries, unless pursuant to a treaty stipulation, and will not make it a practice. Matter of Metzger, 5 How. 176 ; Case of Jose Fer- reira dos Santos, 2 Brock. Marsh. 493 ; United States v. Davis, 2 Sumn. 482, 1 Op. Att.-Oen. 68, Id. 510, 2 Id. 359, ' 3 Id. 661, 6 Id. 85, 7 Id. 356 ; and see Re Kaine, 14 How. 103, 112. But it has in exceptional cases asserted the right both to receive and to surrender a criminal without such stipulation re- quiring it. As between the United States and foreign countries, therefore, extradition is to be considered and defined as being, not a duty or right, but a practice of sur- rendering fugitive criminals, founded upon treaty stipulations between the governments involved, or upon excep- tional and extraordinary reasons recom- mending a surrender in a particular case. The cases in which, and crimes for which, an offender will be reclaimed or surrendered as matter of right, are pre- cisely those defined by some treaty be- tween the United States and the other government involved, and, if there is no such treaty, there is no right of extra- dition. The following is such an- exhibit as can be made in limited space of the pro- visions of the existing treaties declaring grounds of extradition. It must be under- stood that the crimes are often more minutely defined in the treaty than is here indicated. The treaties themselves are most conveniently consulted in the volume of U. S. Rev. Stat, containing public treaties in force Dec. 1, 1873, and in the subsequent annual laws. By our treaty with Great Britain of Aug. 9, 1842, it is agreed that the United States and Great Britain "shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respec- tively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asy- lum, or shall be found within the terri- tories of the other: Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, i£ the crime or offence had been there committed. ' ' Our treaty with the Hawaiian Islands of Dec. 20, 1849, contains provisions on the subject of extradition which cor- respond with those of the treaty with Great Britain, above mentioned. So does our treaty with Baden of Jan. 30, 1857, re-declared July 19, 1868, except that it does not specify utterance of forged paper, and does mention fabrica- tion or circulation of counterfeit money, either coin or paper, and embezzlement of public moneys. By our treaty with Prance of Nov. 9, 1843, it is agreed that the United States and France shall, on requisi- tions made in their name, through the medium of their respective diplomatic agents, deliver up to justice persons who, being charged with the following crimes : — " murder (comprehending the crimes designated in the French penal code by the terms assassination, parri- cide, infanticide, and poisoning), or with an attempt to commit murder, or with rape, or with forgery, or-with arson, or with embezzlement by public officers, EXTRADITION 472 EXTRADITION ■when the same is punishable with in- famous punishment," — shall seek an asylum, or shall be found within the ter- ritories of the other: Provided, that this shall be done only when the fact of the commission of the crime shall be so es- tablished as that the laws of the country in which the fugitive or the person so accused shall be found would justify his or her apprehension and commitment for trial, if the crime had been there committed; and shall not be done for offences of a purely political character. Robbery and burglary are added to the above enumeration by the treaty of Feb. 24, 1845; and by the treaty of Feb. 10, 1858, the above provisions are extended to persons charged, whether as princi- pals, accessories, or accomplices, with "forging or knowingly passing or put- ting in circulation counterfeit coin or bank-notes or other paper current as money, with intent to defraud any per- son or persons; embezzlement by any persons or persons hired or salaried to the detriment of their employers, when these crimes are subject to infamous punishment." Our treaty with the Orange Free State of Dec. 22, 1871, covers substantially the same crimes as the treaties with France, with the addition of piracy. Our treaty with the Two Sicilies of Oct. 1, 1855, provides extradition for murder (including assassination, parri- cide, infanticide, and poisoning), attempt to commit murder, rape, piracy, arson, making and uttering false money, forg- ery (including forgery of evidences of public debt, bank-bills, and bills of ex- change), robbery with violence, intimi- dation, or forcible entry of an inhabited house, embezzlement by public officers (including appropriation of public funds, when these crimes are subject to infa- mous punishment, or the punishment della reclusione) , &c. Offences before date of the treaty and political offences are excepted; and neither party need deliver up its own citizens or subjects. Our treaty with Sweden and Norway of March 21, 1860, provides for the ex- tradition of persons "who shall have been charged with or sentenced for any of the following crimes ; to wit, murder (including assassination, parricide, in- fanticide, and poisoning), or attempt to commit murder, rape, piracy (including mutiny on board a ship, whenever the crew or part thereof, by fraud or vio- lence against the commander, have taken possession of the vessel), arson, robbery and burglary, forgery, and the fabrica- tion or circulation of counterfeit money, whether coin or paper money, embezzle- ment by public officers, including appro- priation of public funds." But the stipulation is declared not to apply to citizens or subjects of the nation upon whom the demand is made; to offences of a political character; nor, until after trial and punishment or acquittal, to persons who have committed new crimes within the State to which, they, have fled. Our treaties with Austria of July 3, 1856, re-declared Sept. 20, 1870, are substantially the same in the enumera- tion of offences as that with Sweden and Norway, above mentioned. So are our treaties with Nicaragua, of June 25, 1870, and with Ecuador, of June 28, 1872, except that these omit attempts to murder. Our treaties with Venezuela, of Aug. 27, 1860, with the Dominican Republic, of Feb. 8, 1867, and with Italy, of March 23, 1868, also substantially con- form in the enumeration of offences to that with Sweden and Norway ; the most important difference being the addition of embezzlement from employers by per- sons hired or salaried. Our treaty with the Swiss Confeder- ation of Nov. 25, 1850, also corresponds, in substance, with the treaty with Sweden; excepting that counterfeiting is omitted, and embezzlement by em- ployes is included in the crimes enu- merated. By our treaty with Prussia of June 16, 1852, it is agreed that "the United States and Prussia, and the other states of the Germanic Confederation included in, or which may hereafter accede to, this convention, shall, upon mutual req- uisitions by them or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being chai-ged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forg- EXTRADITION 473 EXTRADITION ery, or the utterance o£ forged papers, or the fabrication or circulation of coun- terfeit money, whether coin or paper money, or thie embezzlement of public moneys, committed within the jurisdic- tion of either party, shall seek an asylum, or shall be found within the territories of the other: Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or ofEence had there been committed." And by a subsequent treaty with the king of Prussia, of Feb. 22, 1868, the above provisions are extended to aU the states of the North German Confeder- ation. Our treaty with Bavaria of Sept. 12, 1853, re-declared May 26,. 1868, con- tains the same provisions as that with Prussia. By our treaty with Mexico of Dec. 11, 1861, re-declared July 10, 1868, persons may be delivered up who are charged, whether as principals, acces- sories, or accomplices, with either of the following crimes: "Murder (including assassination, parricide, infanticide, and poisoning), assault with intent to com- mit murder, mutilation, piracy, arson, rape, kidnapping (defining the same to be the taking and carrying away of a free person by force or deception), forg- ery (including the forging or making, or knowingly passing or putting in cir- culation, counterfeit coin or bank-notes, or other paper current as money, with intent to defraud any person or persons) ; the introduction or making of instru- ments for the fabrication of counterfeit coin or bank-notes or other paper cur- rent as money, embezzlement of public moneys, robbery (defining the same to be the felonious and forcible taking' from the person of another of goods or money to any value, by violence or put- ting them in fear) , burglary (defining the same to be breaking and entering into the house of another with intent to com- mit felony) , and the crime of larceny, of cattle or other goods and chattels, of the value of twenty-five dollars or more, ■when the same is committed within the frontier states or territories of the con- tracting parties . " Our treaty with Hayti of Nov. 3, 1864, provides extradition for murder, including assassination, parricide, in- fanticide, and poisoning ; attempt to com- mit murder, piracy, rape, forgery, coun- terfeiting, utterance of forged paper, arson, robbery, and embezzlement by public officers or persons hired or salaried, when these crimes are subject to infa- mous punishment. It does not apply to any crime or offence of a political char- acter, nor to any crime or ofience com- mitted prior to the date of the treaty; and neither party need deliver up its own citizens. By our treaty with Belgium of March 19, 1874, persons shall be delivered up who shall have been convicted of or be charged with murder (comprehending parricide, assassination, poisoning, and infanticide) ; the attempt to commit mur- der, rape, arson, piracy, and mutiny on board a ship, whenever the crew, or part thereof, by fraud or violence against the commander, have taken possession of the vessel; burglary (defined to be the act of breaking and entei-ing by night into the house of another with the in- tent to commit felony), robbery (defined to be the act of feloniously and forcibly taking from the person of another goods or money by violence or putting him in fear), and the corresponding crimes punished by the Belgian laws under the description of thefts committed in an in- habited house by night, and by breaking in by climbing or forcibly; and thefts committed with violence or by means of thefts ; forgery (by which is understood the utterance of forged papers, and also counterfeiting of public, sovereign, or government acts) ; the fabrication or cir- culation of counterfeit money, either coin or paper, or of counterfeit public bonds, bank-notes, obligations, or, in general, any thing being a title or instru- ment of credit; the counterfeiting of seals, dies, stamps, and marks of state and public administrations, and the uttei-ance thereof; embezzlement of pub- lic moneys committed within the juris- diction of either party by public officers or depositaries; and embezzlement by any person or persons, hired or salaried, EXTRADITION 474 EYRE to the detriment of their employers, when the crime is subject to punish- ment by the laws of the place where it was committed. Our treaty with the Ottoman Empire of Aug. 11, 1874, contains provisions almost precisely identical with those of the treaty with Belgium, last mentioned; except there is nothing to correspond to the paragraph relating to thefts as pun- ished by Belgian laws. The same is true of our treaty with Spain of Jan. 5, 1877 ; but that adds the act of breaking and entering the offices of the govern- ment and public authorities, or the offices of banks, &c., or trust or insur- ance companies, with intent V) commit a felony therein, and kidnapping. This treaty excepts political offences ; also of- fences committed before its ratification, offences outlawed in the country in which they were committed, and per- sons under prosecution for crimes com- mitted in the country where arrested; and neither nation can be called upon to deliver up one of its own citizens or subjects. II. EXTBADITION BETWEEN THE States. A provision of the federal constitution, art. 4, § ii. 2, directs that "a person charged in any state with treason, felony, of other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdic- tion of the crime." As expounded by the supreme court in Commonwealth of Kentucky v. Dennison, 24 How. 66, this is a compact which includes, and was intended to include, every offence made punishable by the law of the state in which it was committed, and which ^ves the right to the executive author- ity of such state to demand the fugitive from the executive authority of the state in which he is found. The right given to "demand" implies an absolute right; and there is a correlative obligation to deliver, without any reference to the character of the crime charged, or to the policy or laws of the state to which the fugitive has fled. But while the duty of a governor, upon whom a demand for extradition is made, is merely minis- terial, and vests in him no discretion to inquire into the nature or character of the crime, but he is called upon by the constitution to make the arrest and de- livery at once, upon the requisite de- mand and proofs being laid before him, yet, if he refuses to perform the duty, there is no power conferred upon the judicial or any other department of the general government to compel him to perform it. Extradition between the states must, therefore, be considered and defined to be a political duty of imperfect obliga- tion, founded upon compact, and requir- ing each state to surrender one who, having violated the criminal laws of another state, has fled from its justice and is found in the state from which he is demanded, on demand of the executive authority of the state from which he fled. EXTRAORDINARY CARE. Is syuonynjous with greatest care, utmost care, highest degree of care. Toledo, &c. R. K. Co. V. Baddeley, 54 III. 19. See Cabb; Diligence; Negligence. EXTREME HAZARD. To consti- tute extreme hazard, the situation of a ves- sel must be such that there is imminent danger of her being lost, notwithstanding all the means that can be applied to get her off. King V. Hartford Ins. Co., X Conn. 421. EYRE. Justices in eyre were judges commissioned in very early times in England to travel systematically through the kingdom, holding courts in specified places for the trial of certain descriptions of causes. 475 FACTOR F. P was anciently, in England, branded upon felons on their being admitted to clergy, Jacob; also, sometimes, upon persons guilty of fights or frays, Cowel; and upon those guilty of falsity, 2 Reeve Hist. Eng. L. 392; 4 Id. 485. FACE. The expression, the face of a judgment, means the sum for which the judgment was rendered, excluding the in- terest accrued thereon. Osgood v. Bringolf, 32 Iowa, 265. Facio ut des. I do that you may give. Facio ut facias: I do that you may do. These phrases were used in the civil law as representative of classes of contracts, distinguished according to the nature of the promise or considera- tion on each side. See Do ut des. FACT. An actual occurrence ; a cir- cumstance or event; something which has been done. The word is much used in phrases which contrast it with law. Law is a principle, fact is an event. Law is conceived, fact is actual. Law is a rule of duty, fact is that which has been according to or in contravention of the rule. The distinction is well illustrated in the rule that the existence of foreign laws is matter of fact. Within the territoi-yof its jurisdiction, law operates as an obligatory rule which judges must recognize and enforce; but, in a tri- bunal outside that jurisdiction, it loses its obligatory force and its claim to judi- cial notice. The fact that it exists, if important to the rights of parties, must be alleged and proved, the same as the actual existence of any other institution. Questions, is.sues, and conclusions are constantly spoken of as of law or of fact. Questions of law are said to de- volve on the court, those of fact on the jury. Conclusions of law must be sep- arately stated in a referee's report from those of fact. These phrases require the same discrimination as that above stated: the acts or occurrences to which the law is to be applied must be dis- tinguished from the rule of duty by which they are to be adjudged. Attorneys are called attorneys in fact when they are made, by the act or choice of the principal, to manage non-profes- sional business only. Fraud in fact consists in an actual intention to defraud, carried into effect; as distinguished from fraud imputed by law, in view of the necessary conse- quences of one's action. The facts, not the evidence of them, are to be pleaded. This rule means that the pleading must show the occur- rences or things done out of which the rights involved in the suit arise, and need not proceed to show how they are to be established. A fact is a circumstance, act, or event. A truth is a legal principle which governs the fact and its effect. Drake v. Cockroft, 4 E. D. Smith, 34, 1 Abb. Pj-.203; Lawrence V. Wright, 2 Duer, 673. FACTOR. A factor is generally con- sidered to be a person whose business it is to sell, for account of the owner, mer- chandise forwarded to him for the pur- pose, he receiving a commission upon the sales for his services. The term is equivalent to conmiission merchant, which is more commonly used in the United States. It is not erroneous, though it is infre- quent, to employ the word to designate a person employed to buy instead of to seU. A leading difference between a factor and a broker is, that the factor is usually intrusted with the custody and control of the goods ; and in virtue of these he has a special property in them, and a lien upon them for his advances. He is, moreover, usually understood to be au- thorized to deal in his own name, as well as in that of his principal. Russ. Fact, 1, 4; 2 Steph. Com. 77, 78; Paley Ag. IB; Story Ag. §83; Beames Lex Merc. 44. A factor is styled domestic or foreign, according as he resides in the same country with his principal, or not. A factor is the agent of a merchant ahroad, residing in this country, or e cmOran A factor is authorized by a letter of attor- ney, with a salary or allowance for his care. FACTOR 476 FAILURE He must pursue his commission strictly; and the same person may be factor for many difEereut merchants. (Mai. Lex Merc.) Jacob. Where a person employs another to selj goods and wares at a distant place, and agrees that the employe shall receive a certain sum yearly, and a stipulated- por- tion of the profits, for. his serriccs; and the employe ia to select and rent a business house, and employ clerks, and conduct the business ; and all rents and expenses are to be paid out of the proceeds, if sufficient, but if not, then by the employer, — the per- son conducting the business is a, factor. Winne v. Hammond, 37 111. 99. An agent for collecting debts merely, is not a factor. Hopkirk v. Bell, 4 Craneh, 164. A clerk of .the owner of goods, intrusted with the bill of lading, &c., as such clerk merely, cannot be deemed a factor within the meaning of the New York factor's act, which sustains a sale made by an agent in- trusted with the possession, for the purpose of sustaining an unauthorized disposal of the goods made by him. Zachrisson v. Ah- man, 2 Sandf. 68. The captain of a steamboat selling flour on freight will not be considered a factor without express authority^ or such as is im- plied by the usages of trade. Taylor v. Wells, 3 Watts, 65 ; Rapp v. Palmer, Id. 178. Factors' act. The common-law powers of a factor, which enabled him to bind his principal by the sale of the goods intrusted to him (but he could not pledge the goods), received an im- portant extension, in England, by Stat. 6 Geo. IV. eh. 94, usually called the factors' act. This statute, passed for the protection of persons dealing with fac- tors, upon the faith of their apparent possession of the goods, enables a factor to make a valid pledge of the goods, or of any part thereof, to one who believes him to be the bona fide owner of the goods. And Stat. 5 & 6 Vict. ch. 39,- further enables a factor in all respects, as if he were the true owner of the goods, to enter into any contract or agreement regarding them by way of "pledge, lien, or security," as well for an original loan, advance, or payment made on the security of such goods or documents, as also for any further or continuing advance in respect thereof; and such contract or agreement is made valid against the principal, notwith- standing the lender was fully aware that the borrower was a factor only. But this power does not extend to antece- dent' debts. The principles of this legislation have been to some extent adopted in some of the United States. Factorage, is sometimes used to des- ignate what are more commonly termed the commissions earned by a factor. Factorizing process. A name for a proceeding whereby a creditor may reach a demand due to his debtor from a third person, and have it applied to the satis- faction of his demand. It is the same process, in substance, as is more fre- quently called garnishment (g. v.) or trustee process (j. v.). FACTORY. An mclosed building, commonly called an ashery, and " used since its erection for the purpose of depositing ashes therein, and converting the same into potash," is a factory, which may be, under Ohio statute, the subject of burglary. Blackford v. State, 11 Ohio St. 327. The term factory embraces the fixed machinery necessary to operate the factory. A covenant to keep insured a factory nec- essarily embraces the obligation to keep the machinery necessary for the operation of the factory also insured. Mahew v. Hard- esty, 8 Md. 479. FACTUM; FAIT. These words, the one Latin, the other French, are used in the sense of a fact (jj. v.), also in the sense of deed (5. ».) or an instrument under seal. Factum juridicum, or fait juridique. Denotes one of the factors or elements constituting an obligation. FACULTY. An authority founded on the consent of a party competent to give it; a dispensation; a license; used chiefly in ecclesiastical and Scotch law. Faculty of advocates. See Advo- cates. Faculty of a college, in Americaa usage, is the body of professors ; the per- manent instructors ; and is to be distin- guished from the board of trustees. The faculty is charged with the duties of instruction, with regulating the course of study, superintending the labors of individual professors, administering dis- cipline, and conferring degrees. The trustees constitute the corporation, and hold the title to and have the care of the land and buildings, the endowment, and the pecuniary affairs of the institution. FAILURE OF ISSUE. A want of descendants. The phrase is applied, in law, particularly to a lack of issue to FAIR 477 FALCIDIAN take an estate limited over by an execu- tory devise. A distinction is made be- tween a definite and an indefinite failure of issue. When a precise time is fixed by the will, at or within which the fail- ure of issue is to render the limitation over operative, a definite failure of issue is said to be intended ; as in case of a devise to A, but if he dies without issue living at the time of his death, then to another. But when the language of the devise imports a general failure of issue, whenever it may happen, without fixing any time, or any certain or definite pe- riod, within which it must happen, the testator is said to have intended an in- definite failure of issue ; and such a limi- tation was formerly held void, as too remote. Compare Dying without CHILDREN. But this rule of interpre- tation has been changed in England and many of the United States by statutes or by judicial decisions, and such ex- pressions as failure of issue, dying with- out issue, &c., in limitations over, are now usually held to refer to a failure of issue at the death oi the first taker. The words failure of issue, used in limit- ing an executory devise, mean, In their tech- nical legal sense, an indefinite failure of issue, and must be taken in that sense, un- less there be something in the will clearly demonstrating a different intention on the part of the testator. Tongue v. Nutwell, 13 Md. 415. Failure of issue, and dying without issue, are understood as meaning not only a fail- ure of the grantee to have issue, but a fail- ure of the issue of such issue, at any period of time, or an indefinite failure of issue. Patterson v. Ellis, 11 Wend. 259, 278. Where an executory devise is limited to take effect after the dying without heirs, or without issue, or without lawful issue, or on failure of issue of the first taker, the courts of England have held, for a period of cen- turies, that by such language the testator intended an indefinite failure of issue, unless a different intention could be discovered in the context or other parts of the will, or from the whole will taken together; and the courts of New York felt constrained to follow this rule of interpretation, until it was swept away by the revised statutes. But the rule was always made to yield to other words in the will indicating an inten- tion that the estate limited over should vest upon failure of issue of the first taker liv- ing at his death. Dumond v. Stringham, 26 Barb. 104. FAIR. 1. Equal, as between opposing interests; just; proper; usual. ■ To constitute a fair abridgment, witiiin the privilege allowed in the administration I of the copyright law of publishing fair , abridgments, there must be real, substan-c/' tial condensation of the materials, and intel- lectual labor and judgment bestowed there- on, and not merely the facile use of the scissors, or extracts of the essential parts constituting the chief value of the original work. Eolsom K. Marsh, 2 Story C. Ct. 100 ; Story V. Holcombe, 4 McLean, 306. The phrase, fair average crop, takes into account the nature of the season, and un- foreseen events beyond the control of a prudent, faithful overseer. Wright v. Mor- ris, 15 Arh. 444. The phrase, a fair, legal trial in a bond conditioned for delivery of chattels to the obhgee, if on a fair, legal trial he shall prove property, means such a trial as puts the right of property, either directly or in- directly, in issue between the parties. .Such an issue is not made up in a criminal prose- cution for stealing the things in question. Simpkins v. Oakley, 1 Blackf. (2d ed.) 537. Fairly is not synonymous with truly; and truly should not be substituted for it in a commissioner's oath to take testimony fairly. Language may be truly yet unfairly reported ; that is, an answer may be truly written down, yet in a manner conveying a different meaning from that intended and conveyed. , And language may be fairly reported, yet not in accordance ^ith strict truth. Lawrence v. Finch, 17 N. J. Eg. 234. That fairly may be deemed synonymous with equitably, even in construing a statute requiring a division to be made " equitably and fairly," see Satcher v. Satcher, 41 Ala, 26, 40. 2. In English law, fair signifies a greater species of market : it can be held only by grant from the crown, or by prescription, which supposes a grant. These fairs, as anciently held in Eng- land, had a distinctive legal character and privileges, which have lost most of their importance at the present day; and have never been much known in the United States. What are here popular- ly known as fairs depend upon the vol- untary action of the persons concerned, and are governed by the ordinary laws of partnership, sales, &o. FALOATURA. In old English law, was one day's mowing of grass ; a cus- tomary service to a lord from his inferior tenants. TomJins. The grass, fresh mown, and lying to dry, was called /aZ- cata ; and the tenant acting as mower, the falcator. Jacob; Kenn. Gloss. FALCIDIAN LAW. A law of Rome, which restricted the power of a testator, so that, while he might give away not to exceed three-fourths of his estate, one- FALDAGE 478 FALSE fourth at least must descend to his heir or heirs. The law obtained its name from that of the tribune, Falcidius, by whom it was proposed. The principle of this law has been operative in Spain and in Louisiana, and has been adopted to a limited ex- tent in some of the United States. TALDAGE. See Foldage. FALL. The season known as the fall begins the Ist of September. State v. Had- dock, 2 Hawks, 461. A deUvery of fruit-trees and grape-roots in bundles, in freezing weather, on the twenty-second day of November, was held not to fulfil the terms of a contract to de- liver " this fall." Weltner v. Kiggs, 3 West Va. 445. FALSE. In the more important uses, in jurisprudence, of false and falsely, they usually import somewhat more than the vernacular sense of erroneous or untrue. They are often est used to characterize ai wrongful or criminal act, such as in- volves an error or untruth intentionally and knowingly put forward. A thing is called false, when it is done or made With knowledge, actual or constructive, that it is untrue or illegal; or is said to be done falsely, when the meaning is that the party is in fault for its error. Thus, false claim may sometimes mean merely unfounded claim, — a claim for more than is due ; and would generally be un- derstood to imply a claim preferred with knowledge that it was unfounded or ex- cessive. False imprisonment does not mean that the imprisoninent is unreal or deceptive, but presents the party causing it as in fault for knowingly doing so upon an apparent but unreal authority. A charge of false pretences imports a knowing use of a pretence with .intent to deceive. False swearing, in a condition of a policy imposing for- feiture for any false swearing by the in- sured, means swearing to a false state- ment, with knowledge of its falsity. Franklin Ins. Co. o. Culver, 6 Ind. 137. A statute prescribing forfeiture of the security, when a mortgagee renders to an attaching creditor a false account, has been held not applicable to an account which, although erroneous, was rendered in good faith and with all reasonable ef- forts to make it just and correct. Put- nam V. Osgood, 51 N. H. 192. Upon the other hand, under a statute that "every person who shall falsely make, deface, destroy, &c., any record, &c., shall be deemed guilty of forgery, ' ' an in- dictment charging that the defendant did "unlawfully and feloniously destroy," &c., has been held not objectionable for omitting the word falsely, on the ground that the words inserted are more than equivalent to the word omitted. State V. Dark, 8 Blackf. 526. A false bank-note may be merely an il- legitimate impression from a genuine plate, and may, in addition, have forged or ficti- tious signatures. In a statute defining crimes, false bank-bill ought not to be con- strued as including bills which are only counterfeit, forged, or spurious. Kirby v. State, 1 OUo St. 187. Falsification, literally, making false, is used in two senses : 1. To signify altering something, a writing, record, &c., so as to render it untrue. 2. To make proof of errors or untruths, partic- ularly in an account. In equity prac- tice, " surcharge and falsify " is an ex- pression applied to contesting an amount. Surcharging applies to the balance of the whole account, and supposes credits omitted which ought to be allowed. Falsification applies to some item of the debits, supposing it to be wholly false, • or in part erroneous. Bruen o. Hone, 2 Barh. 586 ; see also Phillips v. Belden, 2 Edw. 1, 23. Falsify. 1. To prove a thing to be false. (Cowd; Hunt.Eq.; 4tBt. Coin. 300; iSteph. Com. 463.) 2. To tamper with any document, whether of record or not, by interlineation, obUterar tion, or otherwise. (Stat. 24 & 25 Vict. ch. 98, § 28 ; 4 Steph. Com. 223 ; Cox ^ S. Cr. Law, 158.) 3. To represent facts falsely, as, for in- stance, to state a pedigree falsely. (Stat 22 & 23 Viet. ch. 35, § 24 ; 4 Steph. Com. 147, 148.) Mozlei/ Sr W. FALSE IMPRISONMENT. The wrong of aiTesting, confining, or detain- ing an individual without lawful author- ity to do so. Imprisonment is any restraint of the personal liberty of another ; any prevention of his movements from place to place, or his free action according to his own pleas- ure and will ; a man is imprisoned when he is under the control of another in these re- spects, or either of them, against his own will. It is false imprisonment where this is done without lawful authority. And such imprisonment is deemed au assault in law, FALSE 479 FALSE though no assault in fact is made. John- son V. Tompkins, Baldw. 571, 600. To constitute false imprisonment, it is not necessary that the person should be ar- rested or assaulted; if he is detained by threats of violence, and prevented from go- ing where he wishes by a reasonable appre- hension of personal danger, this is sufficient. Pike V. Harason, 9 N. H. 491 ; Smith v. State, 7 Humph. 43. False judgment. In England, a writ of false judgment formerly lay to the superior courts at Westminster to rehear and review a cause which had been tried in an inferior court, not of record, and the judgment in which was complained of as erroneous. At the present day, since the judicature acts, appeal is the remedy open to the party dissatisfied with a judgment. False personation. The represent- ing one's self to be another person, when done with intent to obtain property be- longing to him, or accompanied by acts tending to subject him to a liability, is an offence, known as false personation. So there may be a false personation of an officer for the purpose of making a pre- tended arrest. These are misdemeanors at common law, and are punishable by statute in many of the states. In Eng- land, by Stat. 37 & 38 Vict. ch. 36, passed in 1874, it is made felony, pun- ishable with penal servitude for life, to personate any person, or the heir, exec- utor, &c., of any person, with intent to claim succession to real or personal property, or falsely to claim relationship to any family. False pretence. A false pretence is some untrue allegation or token, wilfully and knowingly made or used, to defraud another of property. The plural, false pretences, is frequently used as an ellip- tical expression for the offence of ob- taining money (or property) by false pretences. This offence is variously defined by statute; and acts may be punishable under this general name within some jurisdictions which are not in others. As generally understood, however, to warrant a conviction, the evidence must show that the accused made or exhibited to the complainant some false affirmation as to matter of existing fact, or some delusive token or device; that he did this knowingly and fraudulently; that it was done under circumstances which ordinary prudence would not avoid ; and that by means of it the accused obtained value, money, goods, signature to an evi- dence of debt, &c. , to which he was not entitled. See cases 1 U. S. Dig. tit. False pretences. Upon the meaning of the phrase false pretences, used as signifying the allega- tion or devise used to perpetrate the of- fence of obtaining by false pretences, the rule is well settled that, to constitute a false pretence by representations, there must be an express allegation which is false, not a mere act calculated to de- ceive. Allen's Case, 3 City H. Rec. 118; Conger's Case, 4 Id. 65; s. c. 1 Wheel. Cr. 448. It is familiar law that not every false representation made by which a person has obtained the property of an- other can be treated as a false pretence. The pretence must be of some existing fact, made for the purpose of inducing the prosecutor to part with his property, and to which a person of ordinary cau- tion would give credit. A pretence, therefore, that a party would do an act he did not intend to do, is not within the statute, because it is a mere promise for his future conduct. A representa- tion or assurance, in relation to a future event, may be a promise, a covenant, or a warranty, but cannot amount to a statutory false pretence. Examples are : where one seeking to borrow money de- clared that a third person was indebted to him, and would repay the loan in his behalf, this was held promissory in its nature, and not within the law of false pretences. State v. Magee, 11 Ind. 154. But one who obtained goods under the pretence that he lived with, and was employed by, another person, who sent him for them, was held indictable for obtaining goods by false pretences. Peo- ple V. Johnson, 12 Johns. 292; s. P. Heath's Case, 1 City H. Rec. 116; John- son's Case, Id. These cases are very near the line; either of them, upon slight variations of the evidence, might be decided differently. But they illus- trate the principle, and the difficulty of applying it. The representation must be as to existing facts : a declaration in the nature of a promise, or of an assur- ance of the party's belief in what is to FALSUS 480 FALSUS happen in future, is not enough. In regard to giving a check upon a bank where the drawer has no funds, this has been differently viewed; it has been held an indictable false pretence in Maley v. State, 31 Ind. 192 ; and not to be one in Van Pelt's Case, 1 City H. Rec. 137; see also Stuyvesant's Case, 4 Id. 156; People v. Tompkins, 1 Park. Cr. 224. An attempt to obtain money from a bank by means of a forged letter transmitting a certificate of deposit has been held an attempt to obtain property by a false pretence. People v. Ward, 15 Wend. 281. False return. The certificate of a sheriff or other officer to the manner in which he has served or executed a writ, when untrue, is called a false return. In general, the return is taken as true, for the purpose of sustaining proceed- ings founded upon it ; but, if the error leads to consequences injurious to a party, he has an action against the offi- cer for the breach of duty. In this use of false, we do not understand that it imports that the officer necessarily knew the falsity; FALSUS ; FALSA. This Latin word, meaning_false, occurs in several law maxims. Falsus in uno, falsus in omnibus. False in one respect, false in all. The maxim is frequently applied to the testi- mony of a witness, which, if shown to be wilfully false in regard to one matter, may be wholly rejected as unworthy of credit. The wilful falsity is essential to make a case for the application of this rule. The principle is also invoked to discredit documentary evidence, affidavits, deposi- tions, &c. It is also applied, in civil' cases, to sustain charges of deceit or misconduct involving the element of de- ception, and has been cited as the foun- dation of the rule that the testimony of a person once convicted of perjury is in- admissible, now generally abolished. Where a witness speaks to a fact in re- spect to which he cannot be presumed lia- hle to mistake, as in relation to the coun- try of his birth, or his being in a vessel on a particular voyage, or living in a particular place, if the fact turn out otherwise, it is extremely difficult to exempt him from the charge of deliberate falsehood ; and courts of justice, under such circumstances, are bound, upon principles of law and morality and justice, to apply the maxim, ;/!i&ms m uno, falsus in omnibus. The Santissima Trin- idad, 7 Wheat. 283, 339. The maxim may properly be appUed in support of a charge of embezzlement of the cargo of a vessel by salvors, who are shown to have embezzled the rigging and other ship's furniture, in a case where their claim to salvage is sought to be defeated because of such embezzlement. He who would embezzle the one would not hesitate as to the other. The Boston, 1 Sumn, 328, 356. The maxim applies only to cases of wil- ful falsehood ; a jury must believe the tes- timony of a witness to be wilfully false in some particular, before they are authorized to discredit his whole evidence. Wilkins v. Earle, 44 N. Y. 172. The maxim does not stop at nisi prius. All the rules of evidence which govern in the estimate of its weight or effect are es- sential to the discovery of truth, whether addressed to a jury, or coming in the form of written answers or depositions. People V. Davis, 15 Wend. 602. Falsa demonstratio non nocet. False description does not injure. Mere erroneous description does not render an instrument inoperative, where there is no doubt as to the identity of the person or thing intended to be specified. The description, so far as it is false, is inap- plicable to any subject at all, and, so far as it is true, it can apply to one subject only; hence' the courts, in rejecting mat- ter of erroneous description, reject only those words which are shown to have no application to any subject. Wherever there is an adequate and sufficient de- scription, with convenient certainty, of what is intended to be specified by the instrument, a subsequent erroneous ad- dition will not vitiate it. This qualifi- cation of the general terms of the max- im, which is necessary to define it truly, has been expressed by the addition of the words cum constat de cnrpore, or cum constat de persona, suggested by Lord Kenyon, in the case of Thomas ti. Thomas, 6 Dumf. ^ E. 676. Subject to this limitation, the maxim is of frequent application in the construction of all classes of written instruments, particu- larly of wills. Its operation in cases of bequests is sometimes expressed by the maxim, falsa demonstratione legatum non perimi, — by erroneous description a leg- acy is not rendered void. Falsa grammatica non vitiat char- tam. False grammar does not vitiate a FAMILY 481 FAMILY deed. If a clause of a deed, or the deed as a whole, sutficiently expresses its purpose, it is not rendered void because not grammatically expressed. But there must be a clear meaning. Language alto- gether ungrammatical and insensible is o£ no effect; the courts are not bound to find out a meaning for it. Falsa ortbographia non vitiat ohar- tam. False spelling does not vitiate a deed. This maxim is to be understood with similar qualifications in regard to bad spelling as the preceding maxim in regard to bad grammar. In construction, too much regard must not be paid to the nature and proper definition, significations, and acceptance of words and sentences, to pervert the simple intentions of the parties ; for gut hcuret in litera htEret in cortice ; i. e., the lawyer who forms his opin- ion on the mere words without the context goes only skin deep into the argument ; and it is a rule of law, mala grammatica non vitiat chartam ; neither false Latin nor false English will make a deed void when the intent of the parties doth plainly appear. It is therefore held that two negatives do not make an af- firmative when, the apparent intent is con- trary. Shep. Touch. 87. Falso retorno brevium. For the false return of writs. The name of a writ in old English practice issued against a sherifi for falsely returning writs. FAMILY. This word is used in , many diverse senses; the meaning in- " tended can only be determined by oon- f, si^ering the context, and also all extrin- i^S facts bearing upon the general pur- pose of the entire writing in which it occurs. 3 >H<2 ^^ -./IM. %n; In such expressions as " he is of noble family," it refers to a man's ancestry; in saying "he is a family man," it would imply wife and children ; in say- ing "the house was too small for the family," it would include domestic ser- vants ; in " he is married, but has no family," it would mean children only; in "many of his family are residing in the state at the present day," it would import remote descendants and connec- tions. The connection and circum- stances govern. The following are de- cisions upon various uses : Family, in its origin, meant servants ; hut, in its more modern and comprehensive meaning, it signifies a collective body of persons living together in one house, or VOL. 1. 31 within the curtilage, in legal phrase. Wil- son V. Cochran, 31 Tex. 677. Family may mean children, wife and children, blood relatives, or the members of the domestic circle, according to the con- nection in which the word is used. Spencer V. Spencer, 11 Paige, 159. Having a wife and keeping house is not enough to entitle one to a legacy conditioned on his "marrying and having a family." Family in such connection means children. Spencer v. Spencer, 11 Paige, 159. Family was held to mean children, in a devise with power in trust to convey " to any of the male descendants of my family of the name of D, and their heirs." Domi- nick V. Sayre, 3 Sandf. 555. A bequest of a provision for " mainten- ance of my family," does not include a son nearly grown and not residing with the widow and other children. Andrews o. Andrews, 7 Heisk. 234. The bequest of an annuity to A, in trust for the use and benefit of his wife and fam- ily during the life of the said A, does not include A as a beneficiary, in the term fam- ily. Wallace v. McMicken, 2 Disney, 564. Family, as used in a will, may be under- stood to include a wife as well as children. Bowditch V. Andrew, 8 Allen, 339. A statute enacted to modify the law of descent so as to prevent the real property of an ancestor from going " out of the fam- ily," should be deemed to use the word in that sense in which the law uses it when speaking of descents. Thus restricted, it comprehends only the descendants of such ancestor; those who have his blood run- ning in his veins ; his issue. Plerson o. De Hart, 3 N. J. L. 481. A statute allowing to a widow furniture necessary for herself and family, includes such persons as constituted the domestic circle of the deceased at the time of his death, and the servants and children who had attained their majority, but not mere boarders. Strawn v. Strawn, 53 III. 263. Family, m the Wagn. ( Mo. ) Stat. 88, §§ 33, 34, relative to the absolute property of the widow in cases of administration, means children, or those persons who have a legal or moral right to expect to be clothed and fed by the widow; and does not include assistants who may be necessary to keep the house or manage the farm. Whaley v. Whaley, 50 Mo. 677; but see Bradley v. Rodelsperger, 3 S. C. 226. A man and his daughter who live to- gether, the wife and mother being dead, and the daughter being dependent upon her father for support, are a family, within the meaning of the exemption laws. Cox o. Stafford, 14 How. Pr. 519. An adult, residing with his step-mother, and transacting her business, is neither a householder nor a member of the family of the person with whom he resides, within such laws. Bowne v. Witt, 19 Wend. 475. One who has children whom he main- tains is within such laws, though they are FAMILY 482 FARM temporarily absent to be educated. Robin- son's Case, 3 Abb. Pr. 466. A man and wife, without children, who dwell together, are a family, within such laws. Cox V. Stafford, 14 Sow. Pr. 519. A married woman residing in the state, who has no children, and whose husband is a non-resident, is not a person having a family, within the contemplation of such laws. Keiffer v. Barney, 31 Ala. 192. Professional books necessary to a pro- fessional man who supports a family, are part of his "family library," and are ex- empt from attachment. Robinson's Case, 3 Abb. Pr. 466. Family, in popular acceptation, includes parents, children, and servants, — all whose domicile or home is ordinarily in the same house and under the same management and head. In a statute providing that to gain a settlement in a town one must have " sup- ported himself and his family therein " for six years, it includes the individuals whom it was the right of the head to control, and his duty to support. The wife is a member of the family within such an enactment. Cheshire b. Burlington, 31 Conn. 326. The term family, as used in the act of Missouri regulating the service of process, is not confined to persons under the defend- ant's control, or in his employ ; thus, a widowed mother who resides with her son is a member of his family, within the mean- ing of the statute. Ellington v. Moore, 17 Mo. 424. Under a statute which imposes a fine upon any person who in the night wilfully disturbs " any neighborhood or family," an indictment will he for disturbing a woman occupying a dwelling-house alone. Noe u. People, 39 III. 96. Family council, or meeting. By the law of Louisiana, a meeting of relar tives or immediate friends of minors, or persons incompetent to act for them- selves, may be convened, by judicial order, to deliberate and decide upon the property, interests, guardianship, &c., of such persons. The decision of the fam- ily council is often referred to in the re- ported cases, as influencing the judicial disposal of the interests involved. Family physician. Means one who is accustomed to attend members of a fam- ily in the capacity of a physician, not one who has only occasionally so attended them. Reid v. Piedmont, &c. Life Ins. Co., 68 Mo. 421. Family physician, as used in questions issued to a person making application for a policy of life insurance, requiring him to disclose the name of his family physician, is a phrase in common use, and which has no technical signification. It may be sufli- ciently defined as signifying the physician who usually attends and is consulted by the members of a family in the capacity of physician. It is not necessary, in order to constitute one person the family physician of another, that he should invariably at- tend and be consulted by each and all the members of a family. One who is usually consulted by the w&e and children of the insured- may be deemed his family physi- cian, though not usually consulted by the insured himself, and must be disclosed un- der such an interrogaitory as is above stated. Price v. Phoenix Mut. Life Ins. Co., 17 Minn. 497, 519. FARM. The noun farm, in Ameri- can usage, prominently means a tract of land chiefly under cultivation; and the verb means, most frequently, to cultivate or manage agriculturally a tract of land. Farm is said, by Blackstone and other authorities, to be an old Saxon word signifying provisions ; and he says that it came to be used of rent or render, because anciently the greater part of rents were reserved in provisions, the use of money being infrequent; so that a farmer was one who held lands upon payment of provisions by way of rent. By a gradual departure from this original sense, the word farm came to signify the term or tenure for or by which the land was held, and at length to mean the land itself so held upon farm or rent. And thus, in America, where the agricultur- ist is generally proprietor of his own lands, it is used of lands devoted to raising provisions, iiTCspective of the tenure by which they are held. See BurriU for a fuller discussion of this gradual change, and an explanation of intermediate steps. The verb to farm has retained some- what of its old legal sense of to let, par- ticularly in the phrases " to farm let " and " to farm out." The first of these is of usual, though not necessary, employ- ment in a lease, being in continuation of the old Latin form of lease, demisi, concessi et ad Jirmam tradidi, — I have demised; granted, and to farm let. The second means the same, to lease ; it is, however, more appropriate to the leasing a privilege or franchise. The words "farm" and "lot," in a stat- ute regulating assessment of taxes, held synonymous. Saunders v. Springsteen, 4 Wend. 429. Farm crossing, in the New York gen- eral railroad act, includes passages under as well as upon the land. Wheeler v. Roches- ter, &c. R. R- Co., 12 Barb. 227. Farmer. A butcher who has a farm, as FAUCES 483 FEB a convenient appendage to his business, to fatten sheep upon, is not a farmer within the exception of an ordinance forbidding per- sons to sell meat without a license, " except farmers selling the produce of their farms." See Trustees of Rochester v. Pettinger, 17 Wmd. 266. FAUCES TERR.^. The jaws of the land. Projecting headlands, closely approaching each other, and inclosing an arm of the sea. FEALTY. Fidelity; allegiance to the feudal lord of the manor; the obli- gation upon a feudal tenant or vassal to render obedience and service to the im- mediate lord. Also, sometimes, the oath by which this obligation was assumed and expressed. Familiar principles of the feudal sys- tem involved the ideas that a vassal owed duty, obedience, and service to the sovereign of the country, in view of the general protection enjoyed from him, and also to the immediate lord or pro- prietor, from whom he held lands, in return for his enjoyment of them. The first of these obligations was generally termed allegiance; the second, fealty. 1 Bl. Com. 263, 367; 2 Sharsw. Bl. Com. 45, 86; Cowel. Fealty was understood to comprise the following obligations; viz., incolume, that the tenant do no bodily harm to his lord; tutum, that he do no secret damage to him in his house; honestum, that he damage not his reputation ; utile, that he do no damage to him in his possessions; facile, and possihile, that he render it easy for the lord to do any good, and not make that impossible to be done which was before in his power to do. Leg. Hen. I. ch. 5. It was assumed by a solemn oath ; and this oath has itself been sometimes termed fealty, being considered as the obligation itself. 2 Bl. Com. 86; 3 Steph. Com. 508; 1 Crabb, § 770. Fealty has, in modern times, fallen into disuse; the oath is no longer ex- acted. Fealty is the oath taken at the admit- tance of every tenant, to be true to the lord of whom he holds his land: and he that holds land by the oath of fealty has it in the freest manner ; because all persons that have fee, hold per fidem et Jiduciam, that is, by fealty at least. And fealty is incident to all manner of tenures except frankalmoign and tenancy at will. Jacob. Although foreign jurists consider fealty and homage as convertible terms, because in some continental countries they are blended so as to form one engagement, yet they are not to be confounded in England ; for they do not imply the same thing, — homage being the acfaiowledgment of ten- ure ; and fealty, the vassal-oath of fidelity, being the essential feudal bond, and the ani- mating principle of a feud, without which it could not subsist. Wharton. Fealty signifies fidelity, the phrase " f eal and leal " meaning simply faithful and loyal. Tenants by knights' service and also tenants in socage were required to take an oath of fealty to the king or other their immediate lords ; and fealty was one of the conditions of their tenure, the breach of which operated a forfeiture of their estates. Broum. FEASANCE, n. FEASANT, part. Doing, as a noun or participle, is the equivalent of these old law French terms. Thus, misfeasance or malfeasance is ill- doing; damage feasant is doing damage. FEDERAL. A term applied to de- scribe a government as being formed by the union of several independent states or provinces in a homogeneous govern- ment for certain purposes, while they reserve sovereignty for other purposes. The United States has been generally styled, in American political and judi- cial writings, a federal government. The term has not been imposed by any specific constitutional authority, but only expresses the general sense and opinion upon the nature of the form of government. In recent years, there is ob- servable a disposition to employ the term national in speaking of the government of the Union. Neither word settles any thing as to thenature or powers of the gov- ernment. Federal is somewhat more ap- propriate if the government is considered a union of the states ; national is prefer- able if the view is adopted that the state governments and the Union'are two dis- tinct systems, each established by the people directly, one for local and the other for national purposes. See United States V. Cruikshank, 92 U. S. 542. FEE. Reward or compensation for services rendered or to be rendered. 1. A payment in money for official or professional services, whether the amount be optional, or fixed by law or custom. Fees are distinguished from costs in being always a compensation or recompense for services ; while costs are an indemnificatiou for money laid FEE 484 FEE otit and expended in a suit. They are also distinguished as a compensation for particular acts or services, from wages, which denotes a compensation paid by the day, week, &c., for services; and from salary, which is usually applied to a per annum compensation. See Cowdin v. Huff, 10 Ind. 83. The word fees, in the Connecticut statute of 1828, regulating the levy of executions, is not restricted to the charges of the officer for his personal services in levying the exe- cution, but embraces also all the expenses attending the levy, and included in it. Camp V. Bates, 13 Conn. 1. A per diem allowance of county superin- tendents of schools is to be regarded as " compensations" not as fees. JefEerson Co. «. Johnson, 64 111. 149. 2. An estate in lands held of a supe- rior as a reward for services, and on con- dition of rendering service. In feudal law, in which the term originated, fee denoted a stipendiary estate held of a superior by service, being merely a right to the use of theland. But, in England, such estates very early became estates of inheritance, held on condition of service ; and, in modern English law, a fee is an estate of inheritance-supposed to be held mediately or immediately of the sover- eign. It is the most extensive estate that can exist, absolute ownership in an individual being an idea entirely op- posed to the theory of the law of real property in England. The right of alienation is attached to the fee, to the full extent of the estate vested in the tenant, or for any lesser estate. In American law, a fee is an estate of inheritance without condition, belonging to the owner, and aliehable.by him, or transmissible to his heirs absolutely and simply. It is an absolute estate in per- petuity, and the largest possible estate a man can have. The difference between the significations of the term in English and American law results from the gen- eral abolition of feudal tenures through- out the United States. The word fee is also frequently used to denote the land which is held in fee. 'Fee-simple is often employed, merely to distinguish a fee without qualifica- tion or restriction from a fee-toi7, q. v. : a fee-simple being an estate belonging to a man and his heirs generally; while a fee- tail is limited to a particular class or classes of heirs. And one may further analyze the phrase " estate " in fee sim- ple by saying that " estate " imports Jan interest in land, without indicating how extended an interest is meant; "fee" imports the estate meant is an inheri- table one; and " simple," that it is un- limited. Thus the phrase is equivalent to saying, " an absolute, unlimited estate of inheritance in lands." HoUhouse. The true meaning of the word fee is the same with that of feud or fief. In the north- ern languages, it signified a conditional sti- pend or reward. These feuds, fiefs, or fees were large districts or parcels of land al- lotted by the conquering general to the su- perior officers of the army, and by them dealt out again in smaller parcels to the in- ferior officers and deserving soldiers. The condition annexed to them was that the possessor should do service faithfully, both at home and in the wars, to him by whom they were given. A fee or feud is there- fore defined by Sir Henry Spelman as being the right which the vassal or tenant bath in land, to use the same and take the profits thereof to him and his heirs, rendering to the lord his due services. Hence the word fee is used to signify an estate of inheri- tance, being the highest and most extensive interest which a man can have in a feud ; and when the term is used simply, without any adjunct, or has the adjunct of simple annexed to it, it is used In contradistinction to a fee conditional at the common law, or a fee-tail under the statute de dorm, im- porting an absolute inheritance descendible to heirs general, and liable to alienation at the pleasure of the owner, whether by will or deed, to the full extent of his interest, or for a smaller estate. Mozhy //■ W. According to Spelman, %, fee is the right which the vassal has in lands to use the same, and take the profits thereof to him and his heirs, rendering to his lord the due service therefor. Fees were either fee- simple or fee tail, the former being a sim- ply, i. e., generally, inheritable estate, open to any heirs ; the latter being also an in- heritable estate, but in a limited manner, to wit, open to lineal descendants only, or issue or heirs of the body. Broum. The word fee was originally used in contradistinction to allodium, and signified that which was held of another, on condi- tion of rendering him service. It related to the quality, and not the quantity, of the estate. And, although the word is now generally employed to express the quantum of estate, that is not its only meaning. WeudeU v. Crandall, 1 N. Y. 491. In modern English tenures, a fee signifies an estate of inheritance ; and a fee-simple imports an absolute inheritance, clear of any condition or limitation whatever, and, when not disposed of by will, descends to the heirs generally. There are also Urn- FEE 485 FEE-SIMPLE ited fees : 1, qualified or base fees ; and, 2, fees conditional at the common law. A base fee was confined to a person as tenant of a particular place. A conditional fee was restrained to particular heirs, as to the heirs of a man's body. Patterson v. Bllis, 11 Wend. 259, 277. Fee-simple, a freehold estate of inheri- tance, absolute and unqualified, stands at the head of estates, as the highest in dignity and the most ample in extent ; since every other kind of estate is derivable thereout, and mergeable therein. It may be enjoyed not only in land, but also in advowsons, commons, estovers, and other heredita- ments, as well as in personalty, as an annu- ity or dignity, and also in an upper cham- ber, though the lower buildings and soil belong to another. A fee-simple generally is pure, without condition and unrestrained, except by the laws of escheat, and the canons of real-property descent. Wharton. Tenant in fee-simple is he which has lands or tenements to hold to him and his heirs for ever. Jacoh Fee-simple, without words of qualifica- tion or limitation, means an estate in pos- session and owned in severalty. Brackett v. Bidlon, 54 Me. 426. Fee-simple signifies a pure fee ; an abso- lute estate of inheritance ; that which a per- son holds inheritable to him and his heirs general for ever. It is called fee-simple, — that is, pure, — because clear of any condi- tion or restriction to particular heirs, being descendible to the heirs general, whether male or female, lineal or collateral. It is the largest estate and most extensive interest that can be enjoyed in land, being the en- tire property therein, and it confers an un- limited power of alienation. Haynes v. Bowen, 42 Vt. 686. A fee-simple is the largest estate known to the law ; and, where no words of qualifi- cation or limitation are added, it means an estate in possession, and owned in severalty. It is undoubtedly true that a person may own a remainder or reversion in fee. But such an estate is not a fee-simple : it is a fee qualified or limited. So, when a person owns in common with another, he does not own the entire fee, a fee-simple,; it is a fee divided or shared with another. Brackett V. Ridlon, 54 Me, 426 ; and see Stinson v. Rouse, 52 Id. 261. Every estate of inheritance, notwith- standing the abolition of tenures, shall con- tinue to be termed a fee-simple, or fee ; and every such estate, when not defeasible or conditional, shall be termed a fee-siniple absolute, or an absolute fee. 1 N. Y. Rev. Stat. 722, § 2. The word fee, in a statute authorizing a forfeiture, for treason, of all lands, &c., "held in fee or for term of life," held not to include estates in fee-tail, but only those in fee-simple. Den v. Clark, 1 N. J. L. 340, 358. A sale of the fee does not include, in the term itself, a sale free from incumbrances, but only the nature of the estate as distin- guished from a life-estate, a remainder, a fee-tail, or any estate less than a fee-simple. Land is frequently sold in fee-simple, sub- ject to incumbrances ; and this mode of ex- pression is common among conveyancers and in legal proceedings, and involves no contradiction or inconsistency. Cool v. Higgins, 23 N. J. Eq. 308. FEE-FARM. Land held of another in perpetuity by the tenant and his heirs at a yearly rent, without fealty, homage, or other services than such as are spe- cially comprised in the feoffment, was said to be held in fee-farm. The rent was termed fee-farm rent. It must be at least one-fourth the value of the land. In modern law, the term is applied to land held at a perpetual rent. Fee-farm is where an estate in fee is granted, subject to a rent in fee of at least one-fourth of the value of the lands at the time of its reservation ; such rent appears to be called fee-farm, because a grant of lands reserving so considerable a rent is in- deed only letting lands to farm in fee-sim- ple, instead of tiie usual method of life or years. (1 Steph. Com. 676.) Wharton. Fee-farms are lands held in fee to render for them annually the true value, or more or less ; so called because a farm rent is reserved upon a grant in fee. Such estates are estates of inheritance : they are classed among estates in fee-simple ; no reversion- ary interest remains in the lessor ; and they are, therefore, subject to the operation of the legal principles which forbid re- straints upon alienation, in all cases where no feudal relation exists between grantor and grantee. De Feyster v. Michael, 6 N. Y. 467, 497. Fee-farm rent is a rent-charge issuing out of an estate in fee ; a perpetual rent re- served on a conveyance in fee-simple. De Peyster v. Michael, 6 N. Y. 467, 495. FEE-SIMPLE. An estate in fee, without condition or restriction. The term is employed to distinguish such an estate from a fee-tail or other qualified fee. See Fee. The word simple adds no meaning to the word fee standing by itself. But it excludes all qualification or restriction as to the per- sons who may inherit it as heirs, thus dis- tinguishing it from a fee-tail, as well as from an estate which, though inheritable, is subject to conditions or collateral deter- mination. Wharton. The term fee implies an inheritable es- tate, and the addition of the word simple, forming the compound word, fee-simple, as used in modern conveyancing, adds nothing to the force and comprehensiveness of the original term. Nor does the addition of the term absolute, as " fee-simple absolute," add any thing to the force and meaning of fee FEE-TAIL 486 FEIGNED or fee-simple. In modem estates, the terms fee, fee-simple, and fee-simple absolute, are substantially synonymous. Jecko v. Taus- sig, 45 Mo. 167. FEE-TAIL. An estate of inheri- tance, limited to a person and the heirs of his body, or to him and particular heirs of his body. Such an estate was, in early English law, held to be a con- ditional fee; so that, if the donee did not have heirs or issue according to the prescribed description, the land reverted to the donor; but, if the condition was performed by the birth of such heirs presumptive, or issue, the donee was held to have a fee-simple, and might alien or charge the land as a fee-simple estate. In case, however, the issue be- came extinct before alienation made, the estate reverted to the donor. The term fee-simple conditional was usually ap- plied to such an estate which had not yet become absolute by descent to the issue. The celebrated statute, de donis eondiiionalibus (13 Edw. I. ch. 1), took away from the holder of such estates the power to alien the land, providing that it should remain to the issue of those to whom it was given after their death, or, upon failure of issue, should revert to the donor or his heirs. The estate thus became a perpetual entail, the entire in- heritance being divided into two parts or estates; viz., the estate tail, and the reversion or remainder in .fee expectant upon the failure of the estate taU. Ob- jections to such perpetual entailments were, in course of time, developed, and a means of evading the statute de donis, and changing the fee-tail into a fee-simple, was devised, by the fictitious proceeding termed a common recovery. Levying a fine was also, to some extent, employed for the same purpose. See Fine ; Recovery. When fines and recoveries were abolished in England, a still simpler mode of barring entails was authorized, by a disentailing deed, in all cases where a fine or recovery was pre- viously allowable. In England, therefore, the possibility of entailing estates for any considerable length of time has long been, and is now, practically done away. In the United States, estates tail are abolished in most of the states ; and, where they are stiU retained, they are allowed to be barred, usually by a deed by the tenant. The policy of the law in both countries at present seems to favor the fi'ee aliena- tion of lands, as of other kinds of prop- erty. Washb. Real Prop. 66-72. An estate in fee-tail is that which a man hath to hold to him and the heirs of his body, or to Tiim and particular heirs of his body. By the statute de donis conditionali- bus (13 Edw. I. St. 1, ch. 1, passed in 1285), an estate so limited devolved, at the death of the donee, on his issue ; and, on the fail- ure of issue, reverted to the donor and his heirs. In the construction of this statute, the judges held that the donee had an estate which they called a fee-tail. This estate thus assumed the form of a perpetual entail until the reign of Edward IV., when, in a celebrated case, called Taltarum's Case, it was held by the judges that an estate tail might be barred by the collusive and ficti- tious proceeding called a common recovery, and thus turned into an estate in fee-simple. And, in the reign of Henry VIII., the process called a fine was made effectual to enable a tenant in tail to bar his issue, but not the remainder-man or reversioner. Fines and recoveries were abolished by Stat. 3 & 4 Wm. IV. ch. 74, passed in 1833 ; and now an estate tail may in general be barred by a simple disentailing deed, to be enrolled in chancery within six months, in cases where it could, previously to the act, have been barred by fine or recovery. But estates tail of which the reversion is in the crown cannot be barred so far as regards the reversion ; and estates tail created by act of parlia- ment cannot in general be barred. So a tenant in tail, after possibility of issue ex- tinct, cannot bar his estate. Mozley ^ W. FEIGNED ISSUE. In the peculiar practice of courts of chanceiy, the deci- sion of questions of fact, as well as the application of the proper rules of law of equity, lay with the chancellor. If, however, he wished the assistance of a Jury trial of the question of fact, resort was allowed to the fiction of arranging a series of pleadings between the parties, in the same form as if an action had been commenced at common law upon a bet or wager involving the fact in dis- pute ; and the issue joined thereon was referred to a jury; or, in later times, issues were framed stating the questions of fact, and these were sent for jury trial. These were called feigned issues. This practice is believed to be retained in most of the states adhering to the dis- tinction between law and equity courts and procedure. In the states which have adopted reformed codes, issues may FELO 487 FELONT be framed in a class of cases requiring them ; but these are few. In England, the necessity for a resort to them seems abrogated, at least, much diminished. The Stat. 8 & 9 Vict. ch. 109, § 19, made it lawful for any court, either of law or equity, to refer any question of fact to a jury in a direct form. And by Stat. 21 & 22 Vict. ch. 27, §§ 3-6, pro- vision was made for trial by jury in the court of chancery. 3 Bl. Com. 452; 3 Stepli. Com. 601. FELO DE SE. A felon of himself; a self-murderer; one who deliberately puts an end to his own existence, or who commits an unlawful or malicious"act, the consequence of which is his own death. The term denotes a person guilty of the crime of intentional self-destruction, and is more limited in meaning than suicide, which extends to all cases of taking one's own life. To constitute felo de se, the person must be of years of discretion, and mentally capable of the criminal intent which is essential to the offence. Although suicide is deemed a grave public wrong, yet, from the impossibility of reaching the successful perpetrator, no for- feiture is imposed; but yet every person who attempts suicide should be punishable, and every person who wilfully, in any man- ner, encourages or assists another person in taking or attempting his own life, know- ingly furnishes him with any drug or weapon to be used in so doing, &c., is pun- ishable for aiding suicide or an attempt at it. Rep. Pen. Code, 1864, § 227. FELON. An offender of the grade between treason and misdemeanor; a person who has committed felony. FELONICE. The Latin word for which feloniously is the English equiv- alent. It was, under the stricter practice of former times, even more strictly i-e- quired in indictments for felony, when Latin forms were used, than is feloni- ously at the present day. See Eelohy. FELONY. Crimes are divided, in modern usage, into felonies and misde- meanors; the ground of distinction be- ing their comparative heinousness, as indicated by the punishment affixed. Felony, as used throughout the United States, marks or includes the graver offences; those which receive punish- ment of or above a specified grade of severity. What this gi-ade is, varies with the statutes of the jurisdiction. Most of the systems of penal law in the United States contain a positive defi- nition of what crimes shall be deemed felony; and this enables the legislature to use the term felony, in general laws regulating criminal proceedings and pun- ishment, as a generic term, embracing the graver offences as defined. Felony seems to be derived from words connected with the feudal law, signify- ing loss of one's fee; forfeiture of a feudal estate ; and it originally denoted offences which occasioned a forfeiture of the tenure by which the accused held his lands. In later times, it is said to have been continued in use to designate the offences involving other forfeitures. Thus Blackstone has defined it to be " an offence which occasions a total forfeiture of either lands or goods, or both, at the common law, and to which capital or other punishment may be superadded, according to the degree of guilt," 4 Bl. Com. 95; and this defini- tion is approved by Jacob as being, upon the whole, " the only adequate definition of felony," and has, moreover, been fre- quently cited by subsequent writers. Felony stands associated in general use with the idea of capital punish- ment. This, however, is not altogether correct. The term embraced, formerly, every species of crime which occasioned, at common law, the forfeiture of lands or goods. This most frequently hap- pened in those crimes for which a capi- tal punishment was liable to be inflicted, so that at length all capital offences came to be, in some degree or other, fel- ony; but this was likewise the case with some other offences which are not pun- ished with death, as suicide, where the party is already dead; homicide by chance-medley, or in self-defence; and petty larceny or pilfering, — all which Were, by English usage, felonies, as they subjected the committers of them to for- feitures. And, upon the other hand, as felony might be without inflicting capital punishment, so, anciently, there might be capital punishment for an offence which was no felony ; as in case of heresy or standing mute, which, though by the common law, capital, never worked any forfeiture of lands or goods ; an insepa- FELONY 488 FELONY rable incident to felony. In short, the true original criterion of felony is for- feiture ; for, in all felonies which are pun- ishable by death, the offender lost all his lands in fee-simple, and also his goods and chattels; in such as are not so punishable, his goods and chattels only. But the idea of felony is so generally connected with that of capital punish- ment, that it. seems hard to separate them. In English usage, felony seems to have, in strictness, included treason ; yet this has not been so universally recog- nized but that " treason, felony, and misdemeanor" is a phrase employed to designate crimes comprehensively. Thus the United States constitution provides for extradition as between the states of offenders guilty of "treason, felony, or other crime ; ' ' and this clause has been construed as including every offence for- bidden and made punishable by the laws of the state where the offence is com- mitted. Kentucky v. Dennison, 24 How. 66. But whatever the derivation and pre- cise extension of the term in England may have been, they have lost importance in the United States, where felony is now chiefly used subordinate to some statu- tory definition, to bring a class of crimes within general provisions of penal law. Thus, by 2 N. Y. Rev. Stat. 702, § 30, the term felony, when used in any stat- ute, " shall be construed to mean an offence for which the offender, on con- viction, shall be liable by law to be pun- ished by death or by imprisonment in a state prison." And the word felony is then repeatedly used in other general enactments as a sweeping designation of all the graver offences; as in 2 Rev. Stat. 701, § 23: "No person sentenced upon a conviction for felony shall be competent to testify," unless pardoned. The intention of the statutory defini- tion is held to have been to do away with the common-law definition of fel- ony, as entirely inapplicable, and to sub- stitute one which should have signifi- cance and be readily understood. The meaning of the statute is to declare all crimes not expressly denominated mis- demeanors by statutes creating them, which are punishable by imprisonment in the state prison, to be felonies. Klock V. People, 2 Park. Cr. 676. The statutory definition was, however, enact- ed merely for the purpose of giving the word a definite meaning when found in statutory law, and without any design of affecting the rights or liabilities of third persons resulting from ordinary business transactions. Keyser v. Har- beck, 3 Duer, 373, 12 N. Y. Leg. Obs. 201; 8. p. Peabody v. Fenton, 3 Barb. Ch. 451. In applying this statutory definition to an offence in respect to which the statute gives the court discretion or option to punish it, either by imprison- ment in state prison, or by fine, or im- prisonment in county jail, the rule is, that an offence is felony if it is liable to be punished by death or imprisonment in state prison; and is not less felony because it may be punished by some milder punishment instead. People v. Van Steenburgh, 1 Park. Cr. 89; see also Keyser v. Harbeck, 3 Duer, 373. And the definition is construed as relat- ing to the punishment prescribed for the crime, without reference to any personal exemption of the criminal, such as one on account of his age. People v. Park, 41 N. Y. 21. Similar statutory definitions of the term have been enacted in several other states. They are not founded on, and do not purport to express, the common- law nature of felony, but are prescribed for the purpose of securing a short and accurate term for the graver crimes, which may be used in general legisla- tion. The laws of the United States as now revised do not contain any specific defi- nition of felony; and we do not recall that it is employed in acts of congress in any instance where stress need be laid on its precise meaning, except Rev. Stat. § 4090, which provides that, in certain cases in foreign countries, "offences against the public peace, amounting to felony under the laws of the United States," may be tried before the United States minister. It does not seem clear what are the offences amounting to fel- ony under the laws of the United States. It would seem, upon the principle that though the United States has no com- FELONY 489 FEME mon law of crimes, the common-law definitions may be resorted to in deter- mining what is meant by names of offences used in acts of congress, that the common-law meaning of felony should govern; yet it is doubtful if congress intended offences involving for- feiture. Felon : a person who has committed a felony. This is not much employed, in the United States, in any technical connec- tion. But felonious, and feloniously, which impute the character of felony to the act to which they ai-e applied, are terms of much importance in framing indictments. In several jurisdictions the word feloniously has been said to be indispensable to an indictment for felony, and the courts have refused to sanction the use of any equiva- lent. Bowler v. State, 41 Miss. 570; Cain V. State, 18 Tex. 387; State v. El- dridge, 12 Ark. 608; State v. Gilbert, 24 Mo. 380; State v. Feasfer, 25 Mo. 324; State v. Rucker, 6SN. C. 211; and see Bish. Stat. Cr. § 387. Such is be- lieved to be the general rule of the Eng- lish practice and authorities. But, in Ten- nessee, the words ' ' with intent to commit a felony" have been held equivalent to feloniously, and sufficient. Dillard V. State, 3 Heisk. 260. And, in Texas, it has been held that an indictment for larceny need not allege the taking to have been felonious by that precise term : the word fraudulently is equivalent to feloniously. Austin v. State, 42 Tex. 345. Conversely, it has been held there that an indictment for theft, which charges that the defendant "did felo- niously steal," sufficiently alleges that the taking was "fraudulent." .Mus- quez V. State, 41 Tex. 226. Felony is any capital crime short of trea^ son, and such as occasioned at common law the forfeiture of the felon's lands and goods, or, at any rate, of his goods. The word, in its generic sense, includes even treason, and under particular statutes, e.g. 39 & 40 Geo. III. ch. 93, the offence of treason may be prosecuted as a felony. The crime of felony stands midway between treason and misde- meanors. Broum. In the general acceptation of English law, felony comprises every species of crime which at common law occasioned a forfeiture of lands and goods. Treason, therefore, was a species of felony. At the time when Blackstone wrote, an act of par- liament making an offence felony without benefit of clergy, meant that the offender, if convicted, was to suffer death, and incur a forfeiture of his lands and goods. But, as capital punishment never entered into the true idea of felony, so it has now long ceased to have any necessary connection with it in practice. And by the felony act of 1870, § 1, forfeiture for treason and fel- ony is abolished, so that the essence of the distinction between felony and misdemean- or is lost, though such other differences be- tween the two classes of offences, whether in procedure or otherwise, as existed before that act, exist still. Mozley $■ W. An indictment for rape, charging that defendant feloniously did ravish, &c., may be sustained^ although the statute punish- ing the offence uses the expression " unlaw- fully and forcibly have carnal knowledge." The word feloniously, here Substituted for unlawfully, is not only tantamount to it, but is a word of far more extensive and criminal meaning. The act complained of could not have been feloniously, and not unlawfully, done. Omitting the word un- lawfully, therefore, does not vitiate the indictment. Weinzorpflia v. State, 7 Black/. 186. An indictment charged that the defend- ant did "unlawfully and feloniously . . . touch and strike one A, with intent then and there unlawfully and feloniously, and with premeditated malice, to kill and murder said A," &c. Held, that the phrase with intent sufiSciently expressed the word purposely in the statutory definition of murder; and that the word feloniously was, in its connection, identical with the word purposely. Carder u. State, 17 tnd. 307. Where a statute makes criminal the do- ing of an act " wilfully and maliciously," it is not sufficient for the indictment to charge that it was done "feloniously and unlaw- fully," or " feloniously, unlawfully, and wil- fully ; " these latter terms not being synony- mous, equivalent of the same legal import, or substantially the same as " wilfully and maliciously." State v. Card, 34 N. H. 510 ; 8. p. State V. Delue, 1 Chand. 166 ; State v. Roberts, 3 Brev. 139. FEME. A woman. In the phrase haron et feme (q. v.), the word has the sense of wife. Feme covert. A married woman. Generally used in reference to the legal disabilities of a married woman, as compared with the condition of a feme sole. Feme sole. A single woman. The term includes women who have never been married ; those who have been married, but whose marriage has been dissolved by death of the husband or by divorce; and (for some purposes) those FENCE 490 FERM who are judicially separated from their husbands. FENCE. Jacob, and Wharton, fol- lowing him, define fence as a hedge, ditch, or other inclosure of land, for the better manurance and improvement of the same. In the United States, it gener- ally signifies an artificial structure for the purpose of inclosing land. A hedge or ditch would not ordinarily be deemed included. A fence is nothing more than a line of obstacle, and may be composed of any ma- terial which will present a sufficient obstruc- tion. Allen V. Tobias, 77 III. 169. Fence, as used in a statute requiring rail- roads to make and maintain a legal and sufficient fence, includes a gate. Estes v. Atlantic, &c. B. R. Co., 63 Me. 308. FEOD. FEODUM. English and Latin forms of a term equivalent, near- ly, to feud; a fief or fee. The right which, under ancient English military tenures, the vassal had to use and take the profits of the land (or other im- movable property) of the lord, rendering duties or services therefor, according to the conditions of his tenure, was not an estate in the lands as modern tenancies are ; the property in the soil remained in the lord. Accordingly the form feod has been, by some writers, preferred, as conforming to the distinction between this most ancient tenure and the fees afterwards established. The same form is used in the derivatives. Whaiion. FEOFFMENT. A gift or grant of lands in fee, by delivery of the seisin aud possession. It is defined by Black- stone as the gift of any corporeal here- ditament to another. Strictly, a feoff- ment means simply a gift of the fee ; but the term was always used to denote the feudal mode of transferring estates more fully described by the name " fe- offment with livery of seisin." The transfer of the seisin is essential to this mode of conveyance, as it operates by the change of possession. The deed or in- strument of conveyance, when one was employed, was also termed a feofiment; the person who made a feoffment was called the feoffor ; and he to whom it was made, the feoffee. This was one of the earliest modes of conveying land under the common law, but has become obsolete in England, having been superseded by grant and other forms of conveyance. In the United States, feoifments have been used to but a limited extent. See Con- veyance. Feoffment with livery of seisin is either in deed or in law. Livery in deed is thus performed : the feoffor or his attorney goes to the land or house with the feoffee or his attorney ; and there, in the presence of witnesses, declares the contents of the feoffment. And then the feoffor doth de- liver to the feoffee a clod or turf, or twig or bough, there growing, with words to this effect ; " I deliver these to you in the name of seisin of all the lands and tenements con- tained in this deed." But if it be of a house, the feoffor must take the ring or latch of the door (the house being empty), and deliver it to the feoffee in the same form. Livery in law is made, not on the land, but in sight of it only ; the feoffor saying to the feoffee, " I give you yonder land : enter and take possession." Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise, unless he dares not enter, through fear of his life or bodily harm ; and then his continual claim, made yearly in due form of law, as near as possible to the lands, will suffice without an entry. This livery in law cannot be given or received -by attorney, but only by the parties themselves. Mozley 4r W. Feoffment to uses. A feoffment of lands to one person for the use of an- other. Before the passage of the 'statute of uses, 27 Hen. VIII. ch. 10, a feoffee to uses had the legal estate in the lands so conveyed by feoffment ; the claim of the person to whose use they were con- veyed being enforceable only in chan- cery. Under the operation of that stat- ute, uses are turned into legal estates; and the feoffee to uses has no longer even a legal estate in the land, but merely what is called a scintilla juris. FER^ NATURE. Of a wild na- ture. A term applied to animals, wild by nature, as distinguished from those of a tame and domestic nature, termed domitcB naturcB, q. v. The distinction is made in regard to rights of property in animals, the rules applicable to the two classes being entirely different. FERM. A Saxon word signifying provisions; hence, secondarily, rent of lands, that being so often payable in provisions; then a term in lands; and, at last, land itself held upon payment of rent for agricultural uses, or a farm, q. V. Otherwise spelled ferme; fearm; feorm. Fermer, or fermor : one who held lands as lessee for agriculture; a farmer. FERMENTED 491 FEUD FERMENTED. The terms "malt liquor " and " fermented liquor," in the in- ternal revenue act of congress of June 6, 1872, are used synonymously. United States V. Dooley, 21 Int. Rev. Rec. 115. Fermented beer is not necessarily strong beer; and an admission of the defendant that he had sold " ale, strong beer, or fer- mented beer," without a license, does not prove him guilty of an offence. Nevin v. Ladue, 3 Den. 437. FERBY. As a law term, means the franchise or right of running a boat to and fro across inland waters, in the business of transporting persons and property for tolls. It is sometimes used in the vernacular sense of the establish- ment of boats, landing-places and ap- purtenances, so used. Ferriage: the compensation or toU paid for crossing by a ferry ; also, the operating a ferry. Ferryman: one whose business it is to operate a ferry. Ferry properly means a place of transit across a river or arm of the sea ; but in law it is treated as a franchise, and defined as the exclusive right to carry passengers across a river, or arm of the sea, from one vill to another, dr to connect a continuous line of road leading from one township or vill to another; it is not a servitude or casement; It is wholly unconnected with the ownership or occupation of land, so much so, that the owner of the ferry need not have any property in the soil adjacent on either side. (Newton !'. Cubitt, 12 C B. N. s. 32.) Brown. Ferry, when considered as a franchise, is the right arising from grant or prescrip- tion to have a boat or boats for carrying men and horses across a river, for reason- able fare or toll. Aikin v. Western R. R. Corporation, 30 Barb. 305, 810 ; but see re- versal of s. c, 20 N. Y. 370. A ferry is a franchise, and is not the subject of levy, sale, or delivery, under exe- cution. It involves a personal trust granted by the sovereign, upon conditions imposed upon the grantee alone ; and his liability is personal, and cannot be removed by sub- stitution. Munroe v. Thomas, 5 Cal. 470. A ferry is a liberty to have a boat for passage upon a river, for the carriage of horses and men for a reasonable toll. It is usually to cross a large river. State v. Wil- son, 42 Me. 9. Ferry, in a statute regulating ferries, may sometimes mean the terminus or land- ing-place on one side of the water to be crossed, and not include both landings and the entire route between. State v. Hudson, 23 N. J. L. 206. A flat-bottomed boat, connected with cables spanning the stream, and moored or propelled back and forth across it by power supplied by a stationary engine on the bank, is a ferry, as distinguished from a bridge, both under the legislation of Kansas and according to the usual meaning of the word. Parrot v. City of Lawrence, 2 Dill. 332. Ferriage, literally speaking, is the price or fare fixed by law for the transportation of the travelling public, with such goods and chattels as they may have with them, across a river, bay, or lake. People v. San Francisco, &c. K. E. Co., 35 Cal. 606. FEUD. A holding of land from a superior, on condition of rendering him service. A right to use and enjoy lands, on condition of rendering service there- for to a superior who has the absolute property in the land; also, the land itself so held. Otherwise called a feod; a fief ; a fee. A feud is properly only a right in land, not the land itself. Such right was not originally hereditaiy, but merely pre- carious; although it soon became, by custom, certain foi life, and subse- quently inheritable. The Latin word feudum was used to denote a feudal estate by writers in that language on the feudal law, especially in continental Europe. In England, however, after such estates had become hereditary, the word feodum was ap- plied to them. Blackstone and other writers in English appear to apply feud, as the translation of feudum, to distin- guish the original feudal grant or estate from the fee of modern law, apparently regarding fee as the proper translation of feodum, and involving the element of inheritance. But this distinction is not maintained by later writers, who gen- erally use all these terms with the French fefas equivalents. The theory of the feudal system was that the property in, as well as the do- minion over, all lands iu any country was originally in the king or chief who ruled over it; that the use of these was granted out by him to othei's, who were permitted to hold them upon condition of performing certain duties and services for their superior, who theoretically re- tained the property in the land itself. The one who had the use of the land by this arrangement was said to hold of or under his superior, the latter taking the name of lord, the former of vassal; and this right to hold was designated by the term seisin. This holding of lands under another was called a tenure. FEUD 492 FEUD The system was not limited to the rela- tion of the first or paramount lord and vassal, but extended to those to whom such vassal, within the rules of the feudal law, might have parcelled out his own feud to his own vassals ; by such subinfeudation he became the mesne lord between his lord or the lord paramount and his own vassals. Those who held directly of the king were called his tenants in capite, or tenants in chief. Every vassal was bound to perform cer- tain services, usually military, as a re- turn to his lord for the privileges of his tenure. An oath of fealty or fidelity from the tenant to his lord was also in- cident to all tenures, and without it no feud could subsist; and, if the feud was hereditary, the vassal was required to do homage therefor to the lord. On the other hand, the lord assumed various obligations to his vassal ; principally that of protecting the vassal in the enjoyment of the feud, and supplying to him a new one of equal value if deprived of it. Washb. Real Prop. 18-20. The obliga- tions and incidents of the tenure, besides military service^ usually enumerated,are, aids, reliefs, and fines upon alienation, — all which were pecuniary in their nature, — wardship, maritage, and escheat, qq.v. The various kinds of feuds or tenures are enumerated by Bracton thus : ' ' Ten- ements are of two kinds, franktenement and villenage. And of franktenements, some are held freely in consideration of homage and knight-service; others in free socage, with the service of fealty only. Of viHenages, some are pure and others are privileged; he that holds in pure villenage being bound to uncertain services of a villein nature, and he that holds in privileged villenage being bound to certain services of a villein nature, whence, also, the latter is often called a villeinsocman." Nearly all the modem estates are tenures in free socage, that class including fees-simple, fees-tail, es- tates for life, in dower, by the curtesy, and other less common estates. Feuds seem to have originated among the northern nations who ovei-ran the Roman empire ; and the system appears tq have become fully established in con- tinental Europe about the reign of Charlemagne, and under him and his successors. It was not introduced in England until the conquest by William I., under whom the feudal system was completely introduced; and, as a conse- quence, all individual ownerships of lands were abolished, and mere tenures substituted for them. The system thus established is the foundation of the Eng- lish law of real property, and, from the greater relative importance of real prop- erty in the middle ages, it has greatly influenced the law of personal property and personal relations. And although feudal tenures were abolished in Eng- land in 1660, by Stat. 12 Car. II. ch. 24, the principles of the system are neces- sarily recognized in the qualities which it originally imparted to estates created under it. To a lesser extent, this is true of the American law of real prop- erty. In many of the United States, feudal tenures are expressly abolished by statute, and all lands declared to be allodial; but many of the principles re- garding real property which arose out of the feudal system, and which were adopted in the United States as part of the English common law, continue to be recognized. An illustration is the rule which prohibits any limitation of real property founded on an abeyance of the fee. Feudalism, strictly so called, was un- known in England previous to the Norman conquest, although something superficially analogous to it existed in Anglo-Saxon times. It was introduced into England partially in 1066, as a consequence of the acquisition or conquest of England by Wil- liam I. in that year ; and the system was completely established in England in 1085 by Law 52 of that sovereign, founded on the oath taken at Salisbury in the latter year by all free men. The law is in these words : " Statuimm ut omnes liberi homines fcedere et sacramento affirment quod intra et extra universum regnum Anglice Wilhelmo regi domino suojideles esse volant ; terras et honor es illius omni Jidelitate ubique servare cum eo ct contra irdmicos et alienigeras defendere." The precise nature of the change in the law of land, which was thus effected at a stroke, was the entire destruction of ownerships and the substitution for them of tenures ; thenceforward there was no such thing as absolute ownership in land, but only a tenure of them; whence, also, lands have ever since been, as they now are, described as tenements. It is so absolute a maxim of the feudal law, or law of tenures, that all lands are holden mediately or immedi- ately of the king, that even the king him- FEUD 493 FIAT self cannot give lands in so absolute and unconditional a manner as to set them free from tenure ; and therefore, in the case of such a gift, the donee would, prior to 12 Car. II. ch. 24, have held the lands of the king in capite by knight service, and would, since that statute, now hold by fealty. Brown. Eeudal tenures arose in England from the allotments of land made by the con- queror to the superior officers of his army, and by them to the inferior officers and de- serving soldiers, on the condition that the possessor should do service faithfully, both at home and in the wars, to him by whom they were given; for which purpose he took the oath of fealty ; and in case of the breach of this condition and oath, by not performing the stipulated service, or by de- serting the lord in battle, the lands were again to revert to him who granted them. At first, the lord was the sole judge wheth- er the vassal performed his services faith- fully ; and the feuds were in consequence held at the will of the lord. Afterwards they became certain for one or more years ; after that, they were granted for the life of the feudatory (i.e. the grantee). After- wards they became extended to his sons, thence to his heirs, so as to admit his male descendants in infinitum; thence they be- came confined to the eldest son ; the feuda- tory, or holder of the feud, not being able to alienate it in his lifetime, or to devise it by will. The feudatories, being under fre- quent incapacities of cultivating and ma- nuring their own lands, soon found it ne- cessary to commit part of them to inferior tenants, exacting returns in service, corn, cattle, or money; which returns were the original of rents. This innovation was an inroad into the previously purely military character of feuds. The guise of a mili- tary character, however, continued until the abolition of military tenures by statute. Mode.y Sf W. Feu or feudum was used to denote the feudal holding where the service was purely military ; but the term has been used in Scotland in contradistinction to wardhold- ing, the military tenure of the country, to signify that holding where the vassal, in place of military service, makes a return in grain or in money; a species of holding which is coeval with feudality. Bell. Feude. Signifies a hatred not to be satis- fled but with the death of the enemy ; such as that among the people in Scotland and the northern parts of England, which is a combining together of all the kindred to re- venge the death of any of the blood upon the slayer and all his race. This word is mentioned in Stat. 43 Eliz. ch. 13. Termes de la Ley. Feudary. The name of an officer in the English court of wards charged with assisting, on behalf of the crown, at the valuation of lands, on proceedings for escheat. Feudatory. A feudal vassal; the tenant of a feudal estate. Feudal law. The law as to feuds; the system of law regulating the feudal relation of lord and vassal, and the cre- ation, enjoyment, and transmission of feudal estates. This body of law was originally unwritten, consisting of mere usage, but was reduced to writing about the middle of the twelfth century, in the compilation commonly called feodarum consueludines, which was the foundation of subsequent* digests. The feudal law prevailed throughout nearly all western Europe during the middle ages, and al- though it has long since become extinct there, it constituted an important ele- ment in the formation of the political institutions of England, and especially in the principles of common law with regard to real property; radically affect- ing, also, the common law in respect to personal rights and relations and per- sonal property. See Feud. FEUDUM. A feud; a fief; a fee. This is the form of the word used by most of the writers in Latin upon the feudal law. The earlier writers in England used the form feodum. See Feud. FIAT. Let it be done. This Latin word has been used in English practice as the form of a short order or warrant of a judge for making out and allowing certain processes. Jacob. Also, an indorsement by the lord chan- cellor or attorney-general, on behalf of the crown, upon a petition for warrant to bring a writ of error, or for any pur- pose for which the consent of the crown is necessary, is called the__/fa«. Tomlins. Proceedings in bankruptcy used also, at one time, to commence by what was called a, fiat in bankruptcy, which was a power under the lord chancellor's sig- nature, authorizing proceedings to be taken in bankruptcy. 2 Steph. Com. 153, note. Fiat justitia. Let justice be done. On a petition to the king, for his warrant to bring a writ of error in parliament, he writes on the top of the ■petition fiM justitia, and then the writ of error is made out, &c. Jacob, And when the king Is petitioned to re- dress a wrong, he indorses upon the peti- tion, " Let right be done the party." Dyer, 388; Stamf. Prarog. Reg. 22. FICTION 494 FIDUCIAKY FICTION. The act of feigning; that which is feigned or pretended to be true. In its technical, legal use, the term signifies an assumption that some- thing is true which is or may be false. Such fictions are allowed for furtherance of justice, and sometimes for mere con- venience. A fiction is not to be dis- proved, as regards the purpose for which it is assumed as a fact. But, on the other hand, a fiction is not permitted to be carried further than the object for which it is introduced necessarily re- quires, nor to extend to that which is impossible; nor is it allowed to work any injury. Fictions are distinguished from pre- sumptions of law. Such presumptions are arbitrary inferences, which may or may not be true, but which the rules of law do not permit to be disproved. In the case of a fiction, the fact assumed is usually understood to be false. A like distinction exists as between fictions and estoppels. In estoppels, a person is merely held to be precluded from as- serting what is acknowledged to be a fact; but an opposite state of facts is not necessarily assumed to be true. -Fictions were vei-y numerous in the Roman and the civil law. They were frequently resorted to also in the early common law, usually to sustain an ex- tension of jurisdiction or of a remedy or form of procedure from cases to which it was applicable, to other cases to which it was not strictly applicable, the ground of the inapplicability being some differ- ence of an immaterial character. The history of the action of ejectment af- fords a familiar example. • The more useful of these fictions have been su- perseded by changes in the law, and are but seldom resorted to in mod- ern jurisprudence. They were found, however, of great utility and importance in the amelioration of the rules of the common law, and are classed, with equity and legislation, as one of the three principal methods of improvement of the law. ' ' Fiction of law is defined as a supposi- tion of law that a thing is true, without inquiring whether it be so or not, that it may have the effect of truth so far as is consistent with justice. Muzley Sj- W. The phrase "implied by law" is fre- quently used to cover a legal fiction. Tor instance, when it is said that a contract or request is " implied by law," it is frequently meant that no such contract or request has ever been made, but that, for certain legal purposes, it must be held to have been made. But the phrase is applied equally to the most rational and obvious inferences of fact. Mozley Sj- W^ FIDEI COMMISSARIUS. A person who has a beneficial interest in an es- tate which, for a time, is committed to the faith or tmst of another. This is a term of the civil law very nearly equivalent to the term cestui que trust in the common law ; and in the Anglicized form, Jidei commissary, or Jide commis- sary, has been proposed as a substitute for cestui que trust. FIDEI COMMISSUM. A thing committed to one's faith; a trust; par- ticularly, a devise or bequest in trust. This term, in the civil law, denoted a gift of property by will to one person, in confidence that he would convey the property or dispose of the profits to or for the benefit of another. A donation of land by act inter vivos to a person on condition that, in case she should die without posterity and without having disposed of the land, it should belong to third persons, is a Jidei commissum, prohib- ited by the civil code of Louisianai Duc- loslange v. Koss, 3 La. Ann. 432. The provision of the Louisiana civil code, that substitutions and Jidei commissa are prohibited, abolishes express trusts, but does not reach or affect implied trusts, aris- ing where an individual has, against con- science and right, possessed himself of an- other's property. In such a case, the Lou- isiana law affords redress as speedily and amply as the law of any other state. Games v. Chew, 2 Bow. 619. FIDUCIARY. Involving confidence; founded upon actual tmst reposed. The word seems derived from the civil law, but its exact meaning there is not retained. Prominent instances of the use of it in American jurisprudence are in the bankrupt laws, and the pi-ovision of the Kew York code allow- ing arrest for debt. As the term is used in the New York laws allowing arrest as a remedy for debts incurred in a fiduciary capacity, it is held to import trust, confidence: it refers to the integi-ity, the fidelity, of the party, rather than his credit or ability; and contemplates good faith, rather than legal obligation. Stoll v. King, 8 How. FIDUCIARY 495 FIDUCIARY Pr. 298; compare Frost v. McCarger, 14 7c?. 131, 137. It embraces a trust reposed, some relation which involves the receipt and payment of money belonging to another, over to him, not the receipt of money upon a transaction where the recipient has bound himself to pay the debt, whether it be received by him or not. Sutton i'. De Camp, 4 Abb. Pr. N. s. 483. Indebtedness based not on credit, but on confidence, is to be deemed an indebtedness in a fiduciary capacity. Dunaher v. Meyer, 1 Code R. 87. Moneys received under one of the ex- press trusts known to the law, such as that of an executor, trustee, &c., are clearly received in a fiduciary capacity ; but not so those received in any and every ordinary agency. Smith v. Ed- monds, 1 Code R. 86. As to agencies, generally, an agent who receives money of his principal, which he has no au- thority to disburse, but is bound to pay over on request, receives it in a fiduci- ary capacity. Republic of Mexico v. Arrangoiz, 5 Duer, 634. The test is as to an agent or attorney employed to collect money, whether the specific moneys ought, in good faith, to have been kept and paid over, or whether the agent had a right to use the moriey. Stoll V. King, 8 How. Pr. 298. So one who receives money from another to pay directly to a third person, may, on his omission to pay it over, be arrested in an action to recover it. Burhans v. Casey, 4 Sandf. 707. An auctioneer or a commission mer- chant, who receives goods to seH for a commission, and receives the proceeds, acts in a fiduciary capacity. Holbrook V. Horner, 6 How. Pr. 86 ; Sohndder ». Shiells, 17 Id. 420. In general, a factor, who has agreed to sell upon com- mission, and account for net proceeds, acts in a fiduciary capacity, and is liable to arrest for not paying over the pro- ceeds. Turner v. Thompson, 2 Abb. Pr. 444; Sohudder v. Shiells, 17 How. Pr. 420; Ostell v. Brough, 24 Id. 274; Dun- aher ». Meyer, 1 OodeR. 87; but whether this is so, where the factor has, for an additional compensation, guaranteed his Bales, see Ostell v. Brough, 24 How. Pr. 274; Sutton v. De Camp, 4 Abb. Pr. N. 8. 483 ; Chaine v. Coffin, 17 Abb. Pr. 441 ; Angus v. Dunscomb, 8 How. Pr. 14. A person who receives money for the purchase of goods, under a distinct un- derstanding that it is not to be used in any other way, is a factor acting in a fiduciary capacity. Noble v. Prescott, 4 E. D. Smith, 139. An agent who is intrusted with negotiable paper by the maker, to get it discounted, and who transfers it to a bona fide purchaser, and receives the proceeds, applying them to his own use, is liable for the money as for money received in a fiduciary ca- pacity. Wolfe V. Brouwer, 5 Robt. 601. Whether money deposited with a broker, to secure him against loss in the per- formance of the depositor's orders as an agent, is held by the broker in a fidu- ciary capacity, see Clark v. Pinckney, 50 Barb. 226; McBarney v. Martin, 6 Robt. 502. Money collected by a banker, un- der an express agreement he may use the fimd till drawn out, is not held in a fiduciary capacity. Bussing v. Thomp- son, 15 How. Pr. 97. The bankrupt laws of 1841 and 1867 each contained a provision that debts contracted in a fiduciary capacity should not be barred by a discharge. This provision has been construed in several cases. Money put into the hands of an agent for a specific purpose of investment, in re- gard to which he was to exert himself to execute the depositor's intention, consti- tutes a special trust ; and, if he appropriates it to his own use, it is a debt in a fiduciary capacity, incurred by violation of good faith, and is not discharged by a certificate in bankruptcy. Flagg ». Ely, 1 Edm. 206. The indebtedness of a collector of city taxes, for moneys collected ofiicially, is a fiduciary debt. Morse v. Lowell, 7 Ma. 152. A factor who retains the money of his principal is not indebted in a fiduciary capacity, within the meaning of the pro- vision withholding a discharge in bank- ruptcy from persons owing money in a fiduciary capacity. The exception relates to technical trusts. Chapman v. Forsyth, 2 How. 202, 206, 208; s. p. Commercial Bank v. Buckner, 2 La. Ann. 1023. A private person who receives a note or other security for collection, receives it in a fiduciary capacity : it is a case of special trust. White v. Piatt, 5 Den. 269. Fiduciary includes indebtedness of a commission merchant for proceeds of goods sold. Meador v. Sharpe, 54 Ga. 125. Money collected by an agent, under an agreement to account and pay over monthly, FIELD 496 riLE is not a debt created in a, fiduciary charac- ter. Grorer, &c. Sewing Machine Co. . Carr, 59 Me. 325. First boat. Goods were ordered to be sent by the first boat. It was held that this meant the first boat by which it was possible safely to send them ; and that a sending by the first general boat was suffi- cient, though a boat had before been sent by a few shippers who specially chartered her. Johnson v. Chambers, 12 Ind. 102. First-class misdemeanant. Section 67 of the EngUsh prisons act, 1865, 28 & 29 Vict. ch. 126, provides that in the county, city, and borough prisons of England and Wales, prisoners convicted of misdemeanor, a,nd not sentenced to hard labor, shall be divided into two divisions, and whenever any persSn convicted of misdemeanor is sentenced to imprisonment, without hard labor, the court or judge may order that such person shall be treated as a " misde- meanant of the first division." Such a mis- demeanant is usually called a first-class mis- demeanant, and is not treated as a prisoner charged with or convicted of a crime. Mozley ^ W. First draiw. An agreement, in consid- eration of the " first draw," to aid a party in procuring a pension was held to mean the first anntiity only, and not the amount due at the date of the certificate of the pension. Trimble v. Ford, 5 Dana, 517. First-fruits. In ancient times, the pope received, throughout Christendom, the first year's whole profits of each ben- efice or religious living. Payment of these, in England, was restrained by early statutes, but was continued, until, at length, after the reformation, when the crown was made head of the church in England, these payments were trans- ferred to the crown, by Stat. 26 Hen. VIII. ch. 3. They were called the first- fruits. Queen Anne restored them to the church, by Stat. 2 & 3 Anne, ch. 11 ; since which, under the name of Queen Anne's bounty, they have formed a fund used to inci-ease the income of the poorer livings. 1 Bl. Com. 284; 1 Steph. Com. 199; 2 Id. 531, 673. In the feudal law, first-fruits was em- ployed to designate the profits of land during the year immediately following the death of a tenant. They belonged to the king. 2 Bl. Com. 66; Wharton. First impression. A cause which presents a question for the first time. and for which, consequently, no prece- dent is known, is called a case of the first impression. First purchaser. This phrase has been applied, in English real-property law, to denote the person who first ac- quired (by purchase) a landed estate, which was afterwards continued in the family, being transmitted by descent. First term. The words first term, in an act which provides that it the defendant in a criminal case, in which a change of venue is not allowed by law, "will make oath that there exists too great an excite- ment to " his " prejudice, to come to trial at the first term, it shall be a sufficient cause for a continuance," mean the term at which the prosecuting officer demands the arraignment of the prisoner. John <>. State, 1 Head, 49. The term meant by the provision of sec- tion 3 of the act of congress, March 3, 1875, which requires application to a state court for removal of a cause to a circuit court, to be made before or at the term at which said cause could be first tried, is some term occurring after the passage of the act, and not a term before its passage. Merchants', &c. Nat. Bank v. Wheeler, 13 Blatchf. 218. If the term at which the calise could otherwise be first tried is one which oc- curs during the time a trial of the cause is stayed by an order of the state court, that is not such a term as is meant. Warner v. Pennsylvania E. R. Co., 13 Blatchf. 231. The term meant by the above-mentioned provision is the term at which the issues' are first made up, the party applying for a removal not having been guilty of negli- gence. Scott V. Clinton, &c. R. R. Co., 6 Biss. 529. FISHERY. The business or practice of catching fish; also, a place where fish are usually caught in considerable quantities. These are the popular mean- ings of the word; but, in legal use, it generally signifies the right to take fish at a certain place or in particular waters. By the common law in England, the right of fishery in all navigable rivers, so far as the sea ebbs and flows, belongs to the crown by prerogative ; and although such fisheries are usually left free to all the subjects, the right may be granted to one or more individuals as private property. In rivers not navigable, or where the tide does not ebb and flow, the right of fishery belongs to the own- ers of the soil or the riparian proprietors, to each within his territorial limits. Various distinctive terms have been em- FISHERY 503 FIXTURE ployed to designate the rights arising under the application of these principles. Thus an exclusive right of fishing in a public navigable river, granted by the crown to a subject, is termed a/ree fish- ery. It is, of course, entirely distinct from the ownership of the soil. A several fishery, on the other hand, is the right of fishery in a stream not navigable, and is the right of the owner of the soil, or is derived from such owner by grant or prescription. A common of fishery, or common of piscary, is a right of fishery, not exclusive, but held in common with others. Such a right has sometimes been termed a common fishery ; but the latter expression is more appropriate for a right common to every one, as a fish- , ery in the sea. The terms free fishery and common of fishery have been said to be equivalent {Angell on Watercourses, ch. 6, §§ 3, 4) ; and the distinctions be- tween the various terras above men- tioned has not been very strictly main- tained by writers on the subject. In the United States, these terms have but little application. The right to fisheries in navigable waters, whether tidal or not, is in some states held to be vested in the state, and open to all the world; in some of the older states, such fisheries were appropriated by the towns in which the waters were situated ; and in others private rights of fishery were established during the colonial condition. All such fisheries are to some extent subject to legislative control. The right of taking fish on the high seas is, of course, common to all the world. Bijt the term fishery is also ap- plied to this right, and the manner of enjoying particular fisheries of this de- scription, and privileges necessary or convenient to the use of them has been the subject of many treaties. There are three sorts of fisheries or pisca- ries. Free fishery, several (or separate) fish- ery, and common of piscary. Common of pis- cary is a liberty of fishing in another man's water. A free fishery, or exclusive right of fishing in apublic river, is a royal fran- chise : this differs from a several fishery ; because he that has a several fishery must also be (or at least derive his right from) the owner of the soil. It differs al^o from a common of piscary, in that the free fish- ery is an exclusive right, the common of piscary is not so : and therefore in a free fishery a man has property in the fish before they are caught; in a common of piscary, not till afterwards. As to a free fishery, no new franchise can at present be granted of it, by the express provision of Magna Charta, ch. 16, and the franchise must he at least as old as the reign of Henry II. Jacob. The right to take fish in the waters upon the soil of a private proprietor, for one's own use, is not an easement, but a right of profit in lands. It can only be acquired by grant, or prescription from which a grant may be presumed. Nor will prescription or custom or dedication raise a general right in the public to enter on the lands of a private owner, at their own pleasure, and catch fish in the waters thereon. Cobb v. Davenport, 33 N. ./. L. 223. FIX. Is often used in law, as mean- ing to render a contingent liability ab- solute. Thus, fixing bail means render- ing the bail finally liable. Bail are said to be fixed by the steps which complete their liability. In a constitutional provision that the general assembly shall fix the compensa- tion of all officers, fix signifies to prescribe the rule, by which the compensation is to be determined, — not to decide the sum each officer is to receive. Cricket v. State, 18 Ohio St. 9. FIXTURK. There is a confusion in the employment of the word fixtures in the cases. Sometimes it is used to denote that which must not be removed from the freehold, sometimes that which may be. The signification which we be- lieve to be sustained by the best reasons, and by a sufficient number of voices, is this: A thing which, although movable in its original nature, has been so affixed to the realty as to become a part of it, and no longer removable by the original owner without consent of the owner of the fee. But there is good authority for an opposite sense. The following defi- nitions, which have been given, show what different views have been enter- tained by lexicographers and text-writ- ers of the meaning of the word : Things so fastened to the land that they cannot be removed against the will of the owner. Appleton's Cycl. (1st ed.) ; Bingham, Tr. on Real Est. The term, doubtless, originally con- noted in every instance of its use that sort of positive fixation and annexation which its etymology suggests ; yet it now connotes, in general, no such idea, either necessarily or at all; but is not unfrequently suggestive of the veiy FIXTURE 504 FIXTURE opposite conception, viz., the right of the tenant to remove; and this, and not annexation, has been said to be the true criterion. Brown, Tr. on Fixtures. Things fixed or affixed to other things. The rule of law regarding them is that ■which is expressed in the maxim, acces- sio cedit principali, " the accessary goes ■with, and as part of, the principal sub- ject-matter." Brown, Diet. A thing fixed to the freehold, not a part of it. The word properly denotes something _^3;eill of exchange is foreign when drawn in one state or country, and made payable in another state or country. It is an inland bill when drawn and made payable in the same state or country. The chief diiferenoe is, that a foreign bill must be protested by a notary, in order to charge the drawer; while an inland biU need not be. The construction of a foreign biU is often influenced by the law of the place where drawn. A bill of exchange drawn in one state of the Union, payable in another, is a foreign bill. See 2 tf. S. Dig. 679, t 31. In England, a foreign bill of exchange is a bill not drawn in any part of the United Kingdom of Great Britain, the Isle of Man, and the Channel Islands, or not made pay- able in or drawn upon any person resident therein. This is by the mercantile law amendment act, 1856 (Stat. 19 & 20 Vict, ch. 97, § 7), prior to which any bill of ex- change drawn out of England, or payable out of England, was a foreign bill of ex- change. Mozley Sf W. Foreign bought and sold. A custom in London, which, being found prejudicial to sellers of cattle in Smithfleld, was abolished. Jacob; WTiarton. Foreign coia. Coin issued by the authority of another sovereignty than that where it is found circulating. The valuation of foreign coin in circulation in the United States is regulated by Rev. Stat. §§ 3564, 3565. Foreign commerce, or trade. Com- merce or trade carried on between any ports in the United States and any foreign country; also, sometimes, that between ports of two states of the Union. The term foreign trade, as used in sec- tion 10 of the act of congress of June 1, 1872 (17 Stat, at L. 238), mcludes trade be- tween the Atlantic and Pacific ports of the United States; and the term coastwise trade, as used in that section, does not include such trade. United States v. Patten, 1 Holmes, 421. Foreign corporation. A corporation created by the laws of one country, nation, or state, considered as acting within another. The term foreign corporation does not include a corporation created by the laws of the state, and located therein. Boley v. Ohio, &c. Ins. Co., 12 Ohio Si. 139. VOL. I. 33 National banks, organized and doing business under the act of congress, are to be regarded as foreign corporations within the provisions of the code of procedure, authorizing actions to be brought and at- tachments to be issued against corporations " created by or under the laws of any other state, government, or country." Bowen v. First National Bank of Medina, 34 How. Pr. 408 ; s. p. Cooke v. State National Bank of Boston, 50 Barb. 339, 3 Abb. Ft. n. s. 339. An English joint.stock company, organ- ized under an act of parliament which, though it stipulates that it does not incor- porate the company, and that the individual liability of members is preserved, yet grants powers of a corporate nature to the company, so that the company has a name as an association, continuing the identity of the body through all changes of members, holds property divided in trans- ferable shares, enjoys the capacity to sue and be sued in the name of an officer, with- out liability to abatement by reason of the death or resignation of the officer, or by change in membership, — may be taxed as a " foreign corporation." Such bodies, in- deed, are not pure corporations, but are intermediate between corporations as known to the common law and ordinary partner- ships. But when, by legislative authority or sanction, an association is formed capa- ble of acting independently of the rules and principles that govern a simple partner- ship, it is so far clothed with corporate powers that it may be treated, for the pur- poses of taxation, as an artificial body ; and becomes subject as such to the jurisdiction of the government under which it under- takes to act and contract in its associated capacity. Oliver v. Liverpool, &c. Ins. Co., 100 Mass. 531. Foreign county. Matters arising in one county, when drawn in question in another, are said to have arisen in a foreign county. One county is called foreign to another, although both are within the same kingdom or state. Foreign decree, judgment, or sen- tence. An adjudication rendered by a tribunal of an independent jurisdiction. Foreign divorce. A divorce obtained in a different jurisdiction from that where the marriage was contracted. Foreign domicile. A domicile estab- lished by a citizen or subject of one sovereignty within the territory of an- other. Foreign enlistment, is a phrase used to signify enlisting of soldiers or sailors in the service of a foreign power. Foreign enlistment acts in England are statutes for preventing British sub- jects serving foreign states in war. FOREIGN 514 FOREST Similar laws in the United States are called the neutrality laws. Foreign factor. A factor who resides in a different country from his prin- cipal. Foreign fishing. Where whales are caught and oil is manufactured by the crew of an American yessel, the oil is not the product of "foreign fishing," within the purriew of the revenue laws of the United States, though it has since been owned and brought into port by persons in foreign service. United States v. Burdett, 2 Sumn. 3.S6. Foreign jury, signifies a jnry drawn from another county than that in which the venue of the issue to be tried lies, as is allowable in certain cases. Foreign law. A statute or unwritten obligatory rule of another country, juris- diction, or nation. Foreign port. Implies a port without the United States. King v. Parks, 19 Johns. 375; Coles. White, 26 Wend. 511. A port exclusively within the sover- eignty of a foreign nation. The Eliza, 2 Gall. i. The ports of the several states of the United States are to each other foreign ports, as regards the authority of masters of vessels lying therein to pledge the credit of the owners for supplies necessary for their vessels. The Lulu, 1 Abb. U. S. 191, 10 WaU. 192; Negus i). Sunpson, 99 Mass. 388. Jersey City is a foreign port, as towards New York City, because the two are in separate states; notwithstanding they are on the same bay, lying on opposite shores. The Sarah J. Weed, 2 Low. 655. A tug, engaged in towing vessels be- tween Lake Erie and Lake Huron, is not a vessel bound to " a port in any other than an adjoining state," or to " any foreign port," within the meaning of section 5 of the act of congress of 1790 (1 Stat, at L. 133), prescribing the kind of contract to be en- tered into between master and mariner. The John Martin, 2 ^66. U. S. 172. Foreign service. In feudal law, was that whereby a mesne lord held of another, without the compass of his own fee; or that which the tenant performed either to his own lord or to the lord paramount out of the fee. {Kiteh. 299.) Foreign service seems also to be used for knigjht's service, or es- cuage imcertain. {Perkins, 650.) Jacob, Foreign state. In American usage, the several states of the Union are for- eign to each other, with respect to mat- ters governed by their municipal laws; while the relations of the general gov- ernment and either state are domestic. This consideration qualifies the usage of several of the phrases mentioned under the present head. It is abun- dantly well settled that a bill of ex- change drawn in one state, payable in another, is a foreign bill. The corpora^ tions created by one state are constantly called foreign corporations in any other. In each state the judgments rendered in, and laws enacted by, another state are foreign judgments and laws. A port of another state is a foreign port. The Indian tribes are not foreign states in the sense of the constitutional provision extending the judicial power to suits be- tween a state and foreign states. In refer- ence to intercourse with foreign nations, they are subject- to many of the restraints imposed upon our own citizens. They are domestic, dependent nations, considered by foreign nations, as well as ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or form po- litical connection with them, would be an invasion of our territory, and an act of hos- tility. Cherokee Nation v. Georgia, 6 Pet. 1. Foreign vessel. A vessel owned abroad, or sailing under the flag of another nation. Foreign vessel, under the embargo act of January, 1808, means a vessel under the flag of a foreign power, and not a vessel in which foreigners domiciled in the United States have an interest. The Sally, 1 Gall. 58. An omission in the registry and enrol- ment of an American vessel does not make it, in point of fact, a foreign vessel. At most, it only deprives her of the privfleges of an American ship. Fox v. The Lodemia, Crabbe, 271. Foreign voyage, in the coasting act of Feb. 18, 1793, ch. 8, means a voyage in- tended to some place without the territorial waters of the United States, and for the purpose of trade. The Lark, 1 Gall. 55; The Three Brothers, Id. 142. As a generic expression, " a foreign voy- age " means, in the language of trade and commerce, a voyage to some port or place within the territory of a foreign nation. A whaling voyage is not a foreign voyage within the meaning of the act of congress of 1803, ch. 62. Taber v. United States, 1 Story, 1, 7. FOREJUDGER. An old English term for a judgment, whereby a man la deprived or put out of a right or thing in question. To be forejudged the court was an expression used when an officer or attorney of any court was expelled from the same for some offence. FOREST. In English law, is 1. Waste ground belonging to the king, replenished with all manner of beasts of FOREST 615 FORGERY chase or venery, which are under the king's protection, for his royal recrea- tion and delight. Cowel; 1 Bl. Com. 289. 2. The word is also used to signify a franchise or right; being the right of keeping, for the purpose of hunting, the wild beasts and fowls of forest, chase, park, and warren, in a territory or pre- cinct of woody ground or pasture set apart for the purpose. 1 Steph. Com. 665. Porestage. The duty paid to the sov- ereign by a forester. Encyc. Land. Forester. A sworn officer of the forest, appointed by the king's letters-patent to watch the rert and Tenison ; to walk the forest both early and late, and to bring tres- passers to justice. Termes de la Ley ; Cowel. Forest courts, were courts which were formerly instituted in England for the government of the king's forests in different parts of the kingdom. They no longer exist. Forest law. A particular system or body of laws relating to the forests of the crown. Brown. FORESTALL. To intercept one's passage, particularly that of one travel- ling on the highway. Forestalling: the act or offence of intercepting or hinder- ing a traveller. Forestalling was chiefly used of a com- mon-law offence, which, more fully ex- pressed, was forestalling the market. It consisted in hindering the transporta- tion of merchandise to market; as by buying up merchandise or victuals com- ing in the way to market; or dissuading persons from bringing their goods or provisions there ; or persuading them to enhance the price when there. As such practices make the market dearer to the fair trader, they were deemed an offence against public trade at common law, and also by Stat. 5 & 6 Edw. VI. ; but since Stat. 7 & 8 Vict. ch. 24, this is no longer 80. Compare Engross. FORFEIT, V. Generally, to suffer a divestiture of one's property in a thing, without compensation, and as a conse- quence of some default or offence. It may, however, be used of money, in which case it imports a requirement to pay the sum mentioned, as a mulct, or for a default or wrong. Forfeit, n. : a thing lost to its owner byway of punish- ment. Foi-feiture: penalty or punish- ment for a default, wrong, or offence, by divesting the wrong-doer's title to some pi'operty, usually property involved in the wrong; the loss of lands or goods by reason of some act in contravention of law, or of some condition in a written document, expressed or implied. According to Blackstone (2 Com. 267), forfeiture is a punishment annexed by law to some illegal act or negligence, in the owner of lands, tenements, or here- ditaments, whereby he loses all his in- terest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public to- gether with himself, hath sustained. Compare Id. 420, where forfeiture for crime is mentioned. Burrill says that forfeiture involves the ideas not only of loss by the delinquent party, but of transfer or surrender to some other, whether it be an individual or the state. Forfeit, in a provision in a contract that a party shall " forfeit " a specified sum on a breach, is equivalent to " penalty," within the rule that it does not import a binding agreement to liquidi^te the damages, but that under it only actual damages can be recov- ered. Taylor v. Marcella, 1 Woods, 302; Salters v. Ralph, 15 Abb. Pr. 273 ; Esmond V. Van Benschoten, 12 Barb. 366 ; Kiehards V. Edick, 17 Id. 260. FORGERY. The name of a crime recognized and punished by the common law, in which it was defined to be the fraudulent making or alteration of a writing, to the prejudice of another's right. See 4 BZ. Com. 247. It is now almost everywhere defined by statute; and the statutory definitions have, upon the whole, operated to enlarge the mean- ing, to make some things forgeries which by the common law were not so. The instrument itself which has been forged is sometimes styled a forgery. As to the distinction between counter- feiting and forgeiy, see Counterfeit. Many definitions of the word in its gen- eral sense have been given. The fraudulent making of a false writing, which, if genuine, would be apparently of some legal efficacy. 2 Bish. Crim. Law, § 524. The signing by one without authority, and falsely and with intent to defraud, the name of another to an instrument which, if genuine, might apparently be of legal effi- cacy or the foundation of a legal liability. State V. Thompson, 19 Iowa, 299 ; s. p. Ames' Case, 2 Me. 365; State v. Kimball, 50 Me. 409; Commonwealths. Chandler, Thach. Cr. FORGERY 516 FORM Cas. 187 ; Commonwealth v. Ayer, 3 Cush. 150 ; People v. Krummer, 4 Park. Cr. 217 ; Barnum v. State, 15 Ohio, 717; Common- wealth M. Searle, 2 Binn. 332 ; State v. Holly, 2 Bay, 262; State v. Smith, 8 Yerg. 151. Forgery, speaking in general terms, is the false making or material alteration of or addition to a written instrument for the purpose of deceit and fraud. It may be the making of a false writing purporting to be that of another. It may be the alteration in some material particular of a genuine in- strument by a change of its words or fig- ures. It may be the addition of some ma^ terial provision to an instrument otherwise genuine. It may be the appending of a genuine signature of another to an instru- ment for which it was not intended. The false writing, alleged to hare been made, may purport to be the instrument of a per- son or firm existing, or of a fictitious person or firm. It may be even in the name of pris- oner, if it purports to be, and is designed to be received as, the instrument of a third person having the same name. But, as a general rule, the writing falsely made must purport to be the writing of another party than the person making it. The mere false statement or implication of a fact, not hav- ing reference to the person by whom the instrument is executed, will not constitute the crime. Commonwealth v. Baldwin, 11 Gray, 197. Forgery, at common law, denotes a false making (which includes every alteration or addition to a true instrument), — a making, malo animo, of any written instrument for the purpose of fraud and deceit. Eex v. Coogan, 2 East P. C. 852. The making a false instrument with in- tent to deceive. Kex v. Coogan, 2 East P. C. 853. The false making an instrument which purports on its face to be good and valid for the purposes for which it was created, with a design to defraud any person or per- sons. Bex V. Jones, 1 Leach, 366. The false making a note or other instru- ment with intent to defraud. Rex v. Parkes, 2 Leach, 775. The false making of an instrument pur- porting to be that' which it is not ; it is not the making of an instrument which pur- ports to be what it really is, but which con- tains false statements. Telling a lie does not become a forgery because it is reduced to writing. Be Windsor, 10 Cox Cr. Cas. 118,123; QBest ^ S. 622. The making or altering of a document with intent to defraud or prejudice another, so as to make it appear to be a document made by another. Be Windsor, 10 Cox Cr. Cas. 118, 124. The word forgery is " taken metaphori- cally from the smith who beateth upon his anvil and foreeth what fashion and shape he will." 3 Coke Inst. 169. It is a common mistake to suppose that, if a deed is really executed by the parties by whom it purports to be executed, it can- not be a forgery. So far from this being the case, any material alteration of a writ- ten instrument, however slight, is a forgery. And it is forgery to affix a false date to a deed with intent to defraud; such false date being material. The essence of for- gery consists in making an instrument to appear to be that which it is not. Mozley Forgery may be committed by making a note in the name of a fictitious person ; in an assumed name ; in the name of a bank which does not exist. It is not necessary to the offence that the note should be one which, if genuine, would be a valid and binding obligation. It is sufficient that the instrument purports to be good. The want of validity must appear on the face of the paper, to relieve from the character of for- gery. United States v. Turner, 7 Pet. 132 ; United States v. Mitchell, Baldw. 366. Making a false paper, and signing it with a fictitious name, with felonious intent, is forgery. Riley's Case, 5 City H. Bee. 87 ; Gotobed's Case, 6 Id. 25. To constitute forgery, it is not essential that the handwriting should resemble his whose name is forged. Dobb's Case, 6 Citv H. Bee. 61. A spurious writing over a genuine auto- graph may properly be termed a forgery. Martine's Case, 6 City H. Bee. 27 ; CaulMns V. Whisler, 29 Iowa, 495. When the question is whether words charging forgery are actionable, the word forgery does not necessarily mean a feloni- ous forgery, for which alone an action lies. Alexander v. Alexander, 9 Wend. 141. A forged bill is one to wluch the signa- tures of the officers of the bank whence it purports to have been issued, are forged, or otherwise falsely affixed. It may be a le- gitimate or an illegitimate impression from the genuine plate, or it may be an impres- sion from a cotmterfeit plate. Kirby v. State, 1 Ohio St. 185. To forge is to make in the likeness of something else ; to counterfeit is to make in imitation of something else, with a view to defraud by passing the false copy for genuine or original. Both words, forged and counterfeited, convey the idea of simili- tude. State ». McKenzie, 42 Me. 392. FORM. The shape or structure of a thing, as distinguished from the mate- rial of which it is composed; mode of arrangement. In lavr, most frequently an established method ol expression or practice; a fixed way of proceeding; a formula. A model of an instrument, a pleading or other legal proceeding, con- taining the essential requisites so ar- ranged as to be used in accordance with the laws, is frequently termed a form ; or, where a legal pi-oceeding is pursued in the manner and order required by laWi it is said to be in proper form. FORMALITY 517 FORSWEAR A distinction is often made between matters of fonn and matters of sub- stance, particularly in the interpretation of statutes allowing amendment or waiver of formal defects in pleadings and other proceedings. With respect to Readings, the distinction is, that, where the matter pleaded is in itself insufi&cient, without reference to the manner of pleading it, the defect is sub- stantial ; but, where the fault is in the manner of pleading, the defect is merely formal; and a similar principle is ap- plied to other proceedings. Forms of action. The various classes into which personal actions at common law were divided were termed forms of action. They were distin- guished by peculiarities in the writs, pleadings, and other proceedings, and in the judgment rendered, *correspond- ing in each form of action to the distinc- tive features of the particular cause of action. For definitions of the several forms of action, and the nature and inci- dents of each, their respective names should be consulted. As usually enu- merated, they are assumpsit, covenant, debt, detinue, replevin, trespass, trespass on the case, and trover. Account and annuity, which were formerly much in use, have become obsolete, or nearly so. The proceedings by mandamus and scire facias also sometimes included. Forms of action were generally adopt- ed in the United States as part of the common-law practice, and long contin- ued' in use ; but in many of the states they have been abolished, and a uniform course of proceeding, regulated by a code of procedure or practice act, substi- tuted. A like change has been effect- ed in England by the supreme court of judicature acts of 1873 and 1875. Not- withstanding these changes, the princi- ples governing the distinctions between the several common-law actions are still frequently invoked, as applicable to like distinctions founded in the nature of different classes of causes of actions, or in the form of the proceeding found ap- propriate thereto, in jurisdictions where the technical forms are wholly abol- ished. FORMALITY. An established meth- od or rule of proceeding or of expres- sion; usually necessary to make valid or regular the instrument, act, or proceed- ing with respect to which it is required or is accustomed to be observed. Formalities : robes worn by the magis- trates of a city or corporation, &c., on sol- emn occasions. Encyc. Land. FOBMEDON. The name of a writ in old English common-law practice, which lay for any person interested in an estate-tail, where, upon an aliena- tion by the tenant in tail, working a discontinuance (y. v.), the right of such person was liable to be defeated. As only those who claimed in fee-simple were entitled to an absolute writ of right, this remedy was provided for persons claimiilg by virtue of any entail, by the statute of Westminster 2d (13 Edw. I. ch. 1), passed in 1825. It was called formedon, because the plaintiff in it claimed ^er/ormam doni, — according to the form of the gift. In modern times, it became nearly obsolete, having been superseded by the action of ejectment; and in 1833 it was abolished in Eng- land, with other real actions, by Stat. 3 & 4 Wm. rv. ch. 27, § 36. The writ oi formedon was of three kinds : a formedon in the descender, which was brought by the heir in tail against the per- son to whom his ancestor, the tenant in tail, had aUenated the land ; a formedon in the remainder, founded not, indeed, on the ex- press words, but on the equity of the above statute, which was brought by the remain- der-man against a stranger, who, on the fail- ure of the issue in tail, had intruded upon the land, and kept the remainder-man out of possession ; a formedon in the reverter, brought under the like circumstances by the donor or his heirs, claiming in rever- sion. {Termes de la Ley; Cowet; 3 Bl. Com. 191, 192.) Mozley Sr W. FORNICATION. The act of unlaw- ful sexual intercourse, upon the part of an unmarried person. If one of the par- ties is married and the other is not, the first, according to the better view, is chargeable with adultery, the latter with fornication. Fornication is punishable by statute in some of the states, in others it is not. FORSWEAR. To swear to what is not true. Forsworn: having sworn falsely. The words do not necessarily import perjury ; for one may be for- sworn by making oath to a falsehood before an officer or tribunal not compe- FORTHCOMING 618 FORUM tent to administer the oath. Bouvier; and see Sheely w. Biggs, 2 Har. §• /. 363. FORTHCOMING. Aq action in Scot- land by which arrestment is made effectual. The arrestment (q-v.) secures the goods or debts (i.e. the debts due to the debtor) in the hands of the creditor or holder; the forthcoming is an action in which the debt is ordered to be paid, or the effects to be delivered up, to the arresting creditor. Bell. FORTHCOMING BOND. A bond often given to a sheriff who has seized property on attachment or execution, conditioned that the property shall be forthcoming; that the obligor will have it ready to be delivered up. when re- quired by law, in the course of the pro- ceedings, upon which the sheriff intrusts the property to the custody of the obligor. Jl FORTHWITH. When used in stat- ' utes, orders, contracts, &c., requiring an act to be done forthwith, means within a reasonable time, with conven- ient celerity. Burgess u. Boetefeur, 7 Man. Sr G. 481. In matters of practice, twenty-four hours being deemed a reasonable time for compliance with orders of court, as to service, payment of costs, and the like, forthwith has come to mean, very generally, "within twenty-four hours." See Champlin v. Champlin, 2 Edw. 328. When a defendant is ordered to plead forthwith, he must plead within twenty- four hours. When a statute enacts that an act is to be done forthwith, it means that the act is to be done within a reason- able time. Whartm. Forthwith seems to import that the re- quisite act shall be performed as soon as, by reasonable exertion confined to that object, it might be ; and which must con- sequently vary according to the circum- stances of each particular case. 3 Chitt. Gen. Pr. 112; 4 Tyrwh. S37. A requirement in a fire policy, to give notice of loss forthwith, implies due dili- gence under all the circumstances. Ed- wards V. Lycoming County Mut. Ins. Co., 75 Pa. St. 378. Fortior et potentior est dispositio legis quam homlnis. The disposition of the law is stronger and more' effica- cious than that of man. The law some- times overrules the will of the individ- ual, and renders his expressed intention or contract ineffective. That this is true as a general principle is so familiar a fact, that it needs not to be formally set forth as a maxim; but in the con- struction of contracts, of wills, &o., in which the intention of the parties, as expressed in the particular instrument, has great weight, this maxim expresses a principle which controls even the plain intention of the writing. Even in the interpretation of a will, the rules of law governing the dispositions of property by a testator absolutely control his ex- pressed intention, and render void any provision by him inconsistent with the dispositio legis. FORTUITOUS. Resulting from un- avoidable physical causes. Compare Accident ; Act of God ; Inevitable. FORUM. The name of the place where courts were held and other pub- lic business transacted, in Rome and other cities of the Roman empire. Hence, a court; a judicial tribunal; the place where a remedy is sought ; the place of jurisdiction. Thus the law of the forum — lex fori — means the law of the place where an action is insti- tuted. The word is also used in many other phrases, among which are the following: Forum conscientiae. The tribunal of conscience. Forum contractus. The court of the place where a contract is made. The place of making a contract, considered as a place of jurisdiction. Forum domicilii. The court of the domicile. The domicile of a defend- ant, considered as a place of jurisdiction. Forum ecclesiasticum. An ecclesi- astical court. The spiritual jurisdiction, as distinguished from the secular. Forum originis. The court of one's nativity. The place of a person's birth, considered as a place of jurisdiction. Forum rei. The court of the defend- ant; the same as the forum domicilii, q. V. Also, the court of the thing; the court of the place where the thing in con- troversy is ; the same as the forum rei sitce, q. v. Forum rei gestae. The court of the transaction. The place where an act is done, considered as a place of jurisdic- tion. Forum rei sitae. The court where the thing is situated. The place where the property in controversy is situated, considered as a place of jurisdiction. FOEWARDER 519 FRANCHISE Forum seculare. A secular ooui't. The secular tribunal or jurisdiction , as distinguished from the ecclesiastical. FORWARDER. A person who re- ceives goods for transportation, and sends them forward to their destination, tak- ing upon himself the expenses of trans- portation, for which he receives a com- pensation from the owners, but who has no concern in the vessels or vehicles by which they are transported, and no in- terest in the freight, is termed a for- warder or forwarding merchant. Story Bailm. § 502 ; Roberts v. Turner, 12 Johns. 232. Such persons combine in their business the double character of warehousemen and agents for a compen- sation to forward goods. Angell Carri- ers, § 75. The distinction between for- warders and common carriers is impor- tant with respect to the different rule of responsibility applied to each; a for- warder being required only to use good faith and ordinary diligence in the care of the goods and in forwarding them by responsible carriers. The same person may be both forwarder and carrier; as where he receives goods into his ware- house to be forwarded according to sub- sequent orders of the owner. An agreement " to forward " goods to a place designated for an agreed freight, held not a contract for forwarding, but for carrying. Krender v. Woolcott, 1 Hilt. 223 ; and see Blossom v. GrifSn, 13 N. Y. 569. FOUR CORNERS. To take a writ- ten instrument by the four corners is a proverbial expression, meaning to read or construe it as a whole, to consider all its parts. FOUR SEAS. A term used in Eng- lish law for the four seas surrounding England ; thus the expression within the four seas, infra quatuor maria, means within the territorial jurisdiction of England. FRANCHISE. A privilege emanating from the government or sovereign power, by grant, shown or supposed, and vested in an individual or body politic. Cliicago City R. W. Co. V. People, 73 lU. 541. The word includes a privilege conferred by the legislature upon individuals, of managing and drawing a lottery. Com- monwealth V. Frankfort, 13 Bush, 186. It does not include immunity (of a cor- poration) from taxes. State v. Maine Cen- tral B. R. Co., 66 Me. 488, 512. It may include an exemption from or- dinary jurisdiction, and sometimes an im- . Norwich City Gas Co., 25 Id. 19, 38. FRANK. Free. The word occurs in a few old compounds not entirely obsolete. It has been retained as a single word, in modern times, to signify the privilege formerly enjoyed by certain high officers, both in England and in the United States, of sending letters free of postage. That privilege does not now exist to any considerable extent. While it continued, to frank was for an author- ized person to write upon the letter "free," signing his name and abbrevia- tion of office ; after which it was carried without charge for postage. A frank was this certificate upon a letter, that it was entitled to go free. ^ To frank a letter means to send it post- free, so that the person who receives it shall have nothing to pay. This is now done in the ordinary way by prepaying the postage ; hence the word frank, like the French affranchir, when applied to letters sent by post at the present day, signifies the prepayment of the postage. But, for- merly, when the postage of letters was or- dinarily paid by the receiver, the word was applied to the privilege, then enjoyed by members of parliament, of sending letters free of duty. Modey ^ W. Frankalmoigne. Is a species of tenure of lands, in England, granted by the owner to the church or to any monastic body, to hold to the church or monastery for ever, free (as the name denotes) of all manner of services to the donor for ever, save and ex- cept the saying of prayers and the distribut- ing of charity to the poor for the welfare of the soul of the donor and his family for ever. Broum. Frankchase. A liberty of free chase enjoyed by any one, whereby all other persons having ground within that compass are forbidden to cut down wood, &c., even in their own demesnes, to the prejudice of the owner of the liberty. Cowel. Frank-fee Is variously defined. 1. As that which is in the hands of the king or lord of any manor, being ancient demesne of the crown. 2. As that Which a man holds by common law to himself and his heirs. 3. As a tentire in which no service is required. This is sometimes called an im- proper feud, because free from all service. Mozlei/ ^ W. Frauk-law. An obsolete expression for the full enjoyment of the common law, as a free subject or citizen; corre- sponding nearly to the American term, civil rights. Frank-marriage. An old tenure of lands in England granted by the owner to his son- in-law upon his marrying into the family, to hold to such son-iu-law and the heirs of the marriage free (as the name denotes) of all manner of services to the donor until the fourth generation, the sole consideration for the gift being the marriage itself. Brown. Frank-pledge. A system of surety- ship for good behavior, which anciently, in England, was required of each free- bom man (with some exceptions) on attaining fourteen years of age; and was given for him by the heads of a body of ten households, among which he belonged. Mozley If W. Frater fratrl uterino non succedet in hsereditate paterna. A brother shall not succeed a uterine brother in the paternal inheritance. The rule of descent at common law excluding the half blood had a much more extended application than that expressed in this maxim; for under it a distant kinsman of the whole blood was admitted, to the total exclusion of a much nearer kins- man of the half blood; and the estate should rather e.scheat to the lord, than descend to the half blood; although the fact that a person was of the half blood to the one last seised did not exclude him, if otherwise entitled, as if he were of the whole blood to those ancestors through whom the descent was derived by representation. 2 Prest. Abs. Title, 447. But this rule of the common law, even in the limited sense expressed in the maxim, was superseded in England by Stat. 3 & 4 Wm. IV. ch. 106; and has been changed by similar statutes in many, of the United States. FRAUD. A term very difficult of definition, at least without separating actual from constructive fi-aud. The wilful acquisition or attempt to acquire the property or defeat the rights of an- other by means which are deceptive and unjust, but not criminal, constitutes fraud in the former sense. A transac- tion which, if sustained, would operate FRAUD 521 FRAUD as a fraud, although, perhaps, not so in- tended, is called a constructive fraud. Fraud was defined in the civil law as any cunning, deception, or artifice, used" to circumvent, cheat, or deceive an- other. Judge Story remarks in regard to this definition that it is "sufficiently descriptive of what may be called pos- itive, actual fraud, where there is an in- tention to commit a cheat or deceit upon another to his injury. But it can hardly be said to include the large class of im- plied or constructive frauds which are within the remedial jurisdiction of a court of equity. Fraud, indeed, in the sense of a court of equity, properly in- cludes all acts, omissions, and conceal- ments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscien- tious advantage is taken of another." 1 Stm-y Eq. Jur. § 187. A distinction similar to that between actual or positive fraud, and constructive fraud, is also made by the use of the terms fraud in fact and fraud in law ; based on the difference between cases where fraud is mere matter of fact, and cases where it is a conclusion of law from the facts. Another distinction is that made be- tween fraud considered as a cause of action or a defence at law, and as a ground of relief by courts of equity. From the peculiar constitution and methods of procedure of the courts of law, they had not the power to deal with fraud other- wise than to punish it by inflicting damages. The many forms of fraud against which specific relief of a preven- tive or remedial sort is necessary, there- fore, became the subjects of equity juris- diction. Hence it is somewhat inaccu- rately said, that certain transactions amount to fraud in equity, but not at law. The ordinary means of fraud are either false representations or conceal- ment as to facts, — often expressed by the Latin terms, suggestio falsi aut «up- pressio veri, q. v. But mere unauthor- ized, erroneous, or false statements, made by one contracting party to another, do not necessarily amount to fraud, such as will avail in a court of law. The repre- sentation or suppression of the truth must have been with the intention to deceive; and damage from such decep- tion must have resulted, to constitute a cause of action. The cases of fraud against which equity wiU give relief were classified by Lord Chancellor Hardwicke, in the case of Chesterfield v. Janssen, 2 Ves. 12.5, 155, as foUows: 1. Fraud may be actual, arising from facts and circumstances of imposition, which is the plainest case. 2. Fraud may be apparent, from the in- trinsic nature and subject of the bargain itself, such as no man in his senses and not under delusion would make, on the one hand, and as no honest or fair man would accept, on the other, which are inequitable and unconscionable bargains ; and of such even the common law has taken notice. 3. Fraud may be pre- sumed from the circumstances and con- dition of the parties contracting; and this goes further than the rule of law, which is, that fraud must be proved, not presumed; but it is wisely established in this court, to prevent taking surrep- titious advantages of the weakness or necessity of another, which, knowingly to do, is equally against conscience as to take advantage of his ignorance. 4. Fraud may be collected or infeiTed in the consideration of a court of equity, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons not parties to the fraudulent agreement. 5. Fraud may infect what are called catching bar- gains with heirs, reversioners, or ex- pectants, in the lifetime of the parents. These have been generally mixed cases, compounded of all or every species of fraud; there being sometimes proof of actual fraud, which is always decisive. Any comprehensive definition of fraud in the view of courts of equity seems to have been avoided, lest new cases might arise, which, i£ they should not fall within the definition, might prove to be without remedy. The effect of fraud, both at law and in equity, is to avoid a contract ab initio, whether the fraud be intended to operate against one of the contracting parties, or against third parties, or against the public generally. But the party guilty FRAUD 622 FRAUD of the fraud cannot, of course, in any case, himself avoid the contract on the ground of the fraud. In many cases of fraud, especially actual or positive fraud, the wrong-doer is liable to an action for damages ; but mere fraud without injury constitutes no cause of action. Fraud, to impair the obligations of a contract, may be either by false represen- tation ; concealment of material circum- stances ; underhand dealing ; or taking ad- vantage of imbecility or intoxication. A distinction is taliien between dolus malus or that gross fraud for which there is no ex- cuse, and dolm bonus or some artifice such as those which it is well understood that merchants practise in order to enhance the value of what they sell. Fraud, treated as a crime, is usually charged as " falsehood, fraud, and wilful imposition." To show an attempt to defraud is not enough. BfM. It is impossible to separate deceit or arti- fice from fraud. The definition given in Bacon's Abridgment (tit. Fraud), viz., "the act by which one person unlawfully, de- signedly, and knowingly appropriates to his own use the property of another without a criminal intent," omits all the essential in- gredients of fraud, and embraces a multi- tude of acts which have never been sup- posed to be fraudulent. People v. Taylor, 4 Park. Cr. 158. The modes of fraud are infinite, and it has been said that courts of equity have never laid down what shall constitute fraud, or any general rule, beyond which they will not go, on the ground of fraud. Fraud is, however, usually divided into two large classes : actual fraud and constructive fraud. An actual fraud may be defined to be some- thing said, done, or omitted by a person with the design of perpetrating what he must have known to he a positive fraud. Constructive frauds are acts, statements, or omissions which operate as virtual frauds on individuals, or which, if generally per- mitted, would be prejudicial to the public welfare, and yet may have been uncon- nected with any selfish or evil design ; as, for instance, bonds and agreements entered into as a reward for using influence over another, to induce him to make a will for the benefit of the obligor. For such con- tracts encourage a spirit of artifice and schemuig, and tend to deceive and injure others. SmUh Man. Eq. Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distin- guished from negligence, it is always posi- tive, intentional. Gardiier v. Heartt, 3 Den. 232. But it may consist in the suppression of the truth, as well as in the assertion of falsehood. Allen u. Addington, 7 Wend. 9,20. Fraud, in its general acceptation, may be defined the misrepresentation or conceal- ment of a material fact. But to constitute fraud in a legal sense there must be a mis- representation or concealment of a fact peculiarly within the knowledge of the party guilty of either, or some device must be used naturally calculated to lull the sus- picions of a careful man, and induce him to forego inquiry into a matter upon which the other party has information, although such information be not exclusively within his reach. And an omission to communicate or concealment of facts must be attended by evidence of some trust or confidence re- posed by one party in the other. Van Ars- dale V. Howard, 5 Ala. 596. To constitute such a fraudulent represen- tation as may be the subject of an action, the representation must have been false, must have been fraudulently made, and must have occasioned damage. Fraus includes the idea of intentional deception. When one has made a false representation, laiowing it to be false, the law infers that he did so with an intention to deceive. And wlien one has made a representation positively, or pro- fessing to speak as of his own knowledge, without having any knowledge on the sub- ject, the intentional falsehood is disclosed, and the intention to deceive is also inferred. Hammatt v. Emerson, 27 Me. 308. Any declaration which induces another to buy or sell upon the confidence that it is true, according to the common acceptation of the words used, is " fraudulent suppres- sion," if the assertion is not strictly true as so understood, notwithstanding it may be true in some other sense different from the ordinary import. Blydenburgh v. Welsh, Baldw. 331, 387. The term fraud, as used in N. C. Const, art 1, § 16, prohibiting imprisonment for debt except in cases of fraud, comprehends not only one's dishonest attempts to baffle his creditors, but also deceitful representa- tions in making a contract, and fraud in in- curring the liabihty, as, for instance, an ad- ministrator's conversion of funds of the estate to his own use. Melvin v. Melvin, 72 N. C. 384. Fraudulent contract. The phrase fraudulent contract, in a statute allowing divorces in cases of fraudulent contract, is not to be taken in its popular sense, but in the technical meaning which it has obtained as appUed to the subject of marriage and divorce; and implies a cause of divorce which existed previous to the marriage, and such a one as rendered the marriage unlawful ab initio, as consanguinity, cor- poral imbecility, or the like. Benton v. Benton, 1 Day, 111. Fraudulent conveyance. In a gen- eral sense, a transfer of property which is infected by any fraud, whether be- tween the parties or afEecting third per- sons, may be styled a fraudulent convey- ance. But the term is usually applied FRAUDS 523 FREEHOLD to transfers made by a person indebted or in embarrassed circumstances, which was intended or will necessarily operate to defeat the right of his creditors to have the property applied to the payment of their demands. If A practises a fraud upon B, affect- ing a conveyance between these parties, as, for instance, by misrepresenting the value of the property conveyed, this is not what is generally meant by a fraud- ulent conveyance. But if A, being in- debted to C, D, and E, conveys his prop- erty to B for the purpose of securing it against the claims of these creditors, this is what is termed, in view of the fraud upon the third persons (none is practised on the grantee) , a fraudulent conveyance. As applied to fraudulent conveyances, actual fraud, or fraud In fact, consists in the intention to prevent creditors from recover- ing their just debts by an act which with- draws the property of a debtor from their reach. Fraud in law consists in acts which, though not fraudulently intended, yet as their tendency is to defraud creditors if they vest the property of the debtor in his grantee, are void for legal fraud, wliich is deemed tantamount to actual fraud, full evidence of fraud, and fraudulent in themselves, the policy of the law making the acts illegal. McIGbbin v. Martin, 64 Pa. St. 352. Active or meditated fraud in the disposi- tion of a debtor's property is characterized by an actual dishonest intent governing the act. Constructive fraud may consist in in- nocently doing some act forbidden, or omit- ting to do some act prescribed, by law. People V. Kelly, 35 Barb. 444 ; s. o. sub nom. CaldweU's Case, 13 Abb. Pr. 405. FRAUDS, STATUTE OF. See Statute of frauds. FRAUS. Fraud; deceit. The idea conveyed by the English word fraud is more frequently expressed in the civil law by the terms dolus and dolus malus. As to the distinction sometimes made between dolus and fraus, see Dolus. Fraus est celare frandem. It is a fraud to conceal a fraud. Concealment, even of the truth, may amount to fraud, as well as the most positive fraudulent statements. Fraus est odiosia et non presu- menda. Fraud is odious, and not to be presumed. The principle that fraud is not- to be presumed is true in a very limited sense only. The law does not presume fraud, where a less odious ex- planation of the facts is equally consis- tent with all the circumstances of a case , and the burden of proof is on the party alleging fraud. But fraud may be pre- sumed, or rather may be conclusively inferred, from circumstances not amount- ing to direct proof. Fraus latet in generalibus. Fraud lies hid in general expressions. Con> pare dolus versatur in generalibus. FREE. 1. Certain or honorable; the opposite of base; as free service, free 2. Privileged or individual; the op- posite of common; as a free chapel, a free fishery, a free warren. 3. Not held to apprenticeship or servi- tude, or under parental dominion ; at lib- erty to act as one pleases, consistently with any obligations he may owe in the ordin- ary domestic relations, or assumed by con- tract, or imposed by the law of the land. Free bench. A sort of dower, al- lowed in copyhold lands. Free course. Signifies that a vessel has the wind from a favorable quarter. Free fishery. A franchise which gives a right of fishing in a public nav- igable river, to a person who has not any ownership on the soil. Sometimes used as equivalent to common of fish- ery. But the idea is that of a privilege of fishing free of any restriction, tax, or toll by the crown, not a public right. Free ships make free goods. This maxim signifies that goods on board a neutral vessel are free from capture, even though they are enemy property. Free socage. A feudal tenure, held by certain services which, though honor- able, were not military. FREEHOLD. An estate in real property, either of inheritance or for life*. The term is derived from the feudal law, in which it denoted the holding of a freeman, as distinguished from villeinage, q. v. See also Estate ; Feb. As, originally, no man could re- ceive more, and no freeman would ac- cept less, than an estate for life, the early freeholds were probably merely life tenures. As, however, fees grad- ually developed into estates of inheri- tance, they were properly included in the meaning of freehold, which is there- fore often defined as including any FREEHOLDER 524 FRESH estate of uncertain duration, which may possibly last for the life of the tenant at the least. Thus an estate granted to a widow during her widowhood is usually considered an estate of freehold. The term had become completely established in this sense long before the abolition of feudal tenures, and by far the greater part of the real property in England and the United States is now freehold prop- erty. The quality of indefinite duration, and the comparative freedom of tenure, are, and always have been, the peculiar qualities of freeholds. A term for years, for however long a period, and though far exceeding the duration of human life, is no freehold. A distinction is occasionally made be- tween freehold in deed and freehold in law. Freehold in deed is the real pos- sessioji of land or tenements in fee, fee- tail, or for life ; and freehold in law is the right to such tenements before actual entry. An estate, to be a freehold, must possess these two qualities : 1, Immobility, that is, the property must be either land, or some interest issuing out of or annexed to land ; and, 2, a sufficient legal indeterminate diu-a- tion ; for, if the utmost period of time to which an estate can endure be fixed and de- termined, it cannot be a freehold. Wharton. In England, the term freehold is in prac- tice used, 1, in opposition to leasehold ; 2, in opposition to copyhold. A leasehold interest, being an estate for a term of years, is but a chattel interest, and in law is less than an estate of freehold, however long the term may be. A copyhold interest was originally an es- tate at the will of the lord of the manor, as it is still in name though not in fact; and an estate at will is the smallest estate known to the law. And in their origin copyholds were deemed worthy the acceptance only of villeins and slaves. Freehold is even yet spoken of in contradistinction to copyhold, though the word freehold in a will, if ob- viously used in contradistinction to lease- hold, may sometimes be held to include copyhold. Mozley Sf W. Estates of inheritance and for life shall continue to be denominated estates of free- hold. 1 N. Y. Rev. atat. 722, § 5. FREEHOLDER. He who possesses a freehold estate. See Freehold. By the ancient laws of Scotland, free- holders were called milites ; and freehold, in England, hath been sometimes taken in opposition to villenage, it being lands in the hands of the gentry and better sort of ten- ants, by certain tenure, who were always freeholders, contrary to what was in the possession of the inferior people held at tlie will of the lord. Jacob. FREELY. Without constraint and compulsion. Dennis v. Tarpenny, 20 Barb .371, 374; Merriam v. Harsen, 2 Barb. Ch. 232; 4 Edw. Ch. 10. In a statute requiring that a deed by a married woman shall be accompanied by an acknowledgment that she executed the deed freely, &c., the word freely does not import that the wife must act without a motive, or execute the deed as a mere act of generosity; but it means without con- straint, coercion, or fear of injury from the husband. Merriam v. Harsen, 2 Barb. Ch. 232. FREEMAN. As used in the Pennsylva- nia constitutional provisions declaring the right of suffrage, does not include the fe- male sex. Burnham v. Laning, 1 Pa. Leg. Gaz. Rep. 411 ; 9 Phila. 241. FREIGHT. The money paid for car- riage of goods by sea ; or, in a larger sense, it is taken for the price paid for the use of a ship to transport goods, and for the cargo or burden of the ship. Jacob. Freight is a compensation for the car- riage of goods. Palmer v. Gracie, 4 Wash. C. Ct. 110 ; Griggs v. Austm, 3 Pick. 20. The terra freight has several difEerent meanings ; as the price to be paid for the carriage of goods, or for the hire of a ves- sel under a charter-party or otherwise ; and sometimes it designates goods carried, as " a freight of lime," or the like. But, as a subject of insurance, it is used in one of the two former senses. Lord ». Neptune Ins. Co., 10 Gray, 109. When used in a policy to describe the subject assured, freight has a well-settled and distinct meaning. It does not include cargo or goods laden on board. These are insured tmder the term goods, or cargo, or merchandise, or words of like import. Freight signifies the earnings or profit de- rived by the sliip-owner or the hirer of a ship from the use of it himself, or by let^ ting it to others, or by carrying goods for others. It cannot be made to comprehend the profit which the owner of a cargo, hav- ing no interest in the vessel or earnings, as such, expects to derive from the transpor- tation of his goods to their port of destina- tion. Mintum v. Warren Ins. Co., 2 Allen, 86. In the act of congress of 1851, ch. 43, § 3, — by which the owners of the vessel in fault for a collision are liable to the extent of the " freight then pending," as well as of the value of their vessel, — freight includes the earnings of the vessel, in transport- ing the goods of her owners. Allen v. Mac- kay, 1 Sprague, 219. Where freight is pledged generally, the word will be understood to include the whole freight for the voyage, which the ship is in the course of earning, and not merely freight to be subsequently earned. The Zephyr, 3 Mas. 344. FRESH. In the sense of recent, oo- FRIENDLY 625 FROM curs in some phrases of technical mean- ing. Fresh disseisin. Formerly, a man might by his own act, and without re- sort to law, seek to defeat a disseisin within the first fifteen days after it was committed. A disseisin thus recent was called a fresh disseisin. Fresh force. In certain cases, by the custom or usage of a city or borough, a person disseised or otherwise wronged in respect of freehold lands therein, might have his remedy (without any writ out of the chancery), by a proceeding called a bill of fresh force, or an assise of fresh force, brought within forty days after the wrong committed, or title to him accrued. Moz- ley ^ W. Fresh pursuit. Following imme- diately and with intent to reclaim or recapture an animal escaped, a thief flying with stolen goods, &c. Fresh suit. By former English law, one who was robbed was entitled to have back his goods, if recovered, provided he secured the conviction of the felon by immediate prosecution, which was called fresh suit. FRIENDLY SOCIETY. A name used, chiefly in England, to designate a class of associations supported by sub- scription for the mutual relief and main- tenance of members, or their wives, children, relatives, or other nominees, against casualties ; such as sickness, old age, or widowhood. Friendly societies were first authorized by statute, in Great Britain, in 1793, by the act 33 Geo. III. ch. 54. This, with several subsequent acts on the same subject, was repealed in 1829 by the act of 10 Geo. IV. ch. 56, by which a more favor- able system was introduced. From 1829 to 1850 these societies became more and more numerous, and the interests in- volved in them grew very- important. In 1850, the whole law relating to these societies was consolidated by the act 18 & 14 Vict. ch. 115, which act, and the subsequent statutes 18 & 19 Vict. ch. 68, and 21 & 22 Vict. ch. 101, give details of their organization and administra- tion, as they have been conducted down to a recent date. By the Stat. 28 & 24 Vict. ch. 58, provision has been made for the winding up and dissolution of such societies. See also the act 25 & 26 Vict. ch. 87, relative to industrial and provideint societies. FRIVOLOUS. Has been the subject of some adjudications, with reference to statutory provisions authorizing the courts summarily to strike out a frivolous answer or plea ; the result of which is that plaintiff can obtain judgment as if the action were undefended, instead of awaiting the call of the cause on the cal- endar of issues. Such provision was made by the English common-law amendment act; also by the New York code of procedure, and by similar codes in other states. In this iise of the term, it means an answer which controverts no material allegation in the complaint, and presents no tenable defence. Lef- ferts u. Snediker, 1 Ahb. Pr. 41; Brown V. Jennison, 3 Sandf. 732; see also Sham, and HuU v. Smith, 8 How. Pr. 149 ; a plea clearly insufficient upon its face, and therefore presumably put in for purposes of delay, or to embarrass the plaintiff. Brown. A frivolous an- swer is not necessarily an irrelevant one. Fasnacht v. Stehn, 5 Abh. Pr. N. s. 338. The rule is sustained by many decisions in New York, that a pleading should not be struck out as frivolous, unless its insufficiency is so manifest that the court can determine it upon bare inspec- tion, without argument. FROM. Descent "from "a parent can- not he construed to mean descent through a parent. Gardner v. Collins, 3 Mas. 398, 2 Pel. 58 ; Case «. Wildridge, 4 Ind. 51. In the interpretation of contracts, where time is to be computed from a particular day or a particular event, as when an act is to he performed within a specified period from or after a day named, the general rule is to exclude the day thus designated, and to include the last day of the speci- fied period. Sheets v. Selden, 2 WaU. m. A statute imposing a new rate of duty on goods imported "from and after" the passage of the act, applies to goods im- ported upon the day when the act took effect. Arnold v. United States, 9 Cranch, 104; 1 Gall. 2iS. The offence of sailing "from a port" with an intent to engage in the slave-trade, is not committed, unless the vessel sails out of the port. United States v. La Coste, 2 Mas. 129, 137. The expression " from " or " to " an ob- ject excludes the terminus. Bonney v. Morrill, 52 Me. 252. From a street, does not necessarily mean FRUCTUS 526 FUNCTUS from its nearest line. Pittsburg v. Clay, 74 Pa. St. 259. The words, from a town or city, used in a charter granted to a railroad company, are to be taken inclusively 'J and' in the con- struction of the road the company may enter the corporate limits of such town or city. Tennessee & Alabama E. B. Co. v. Adams, 3 Head, 596. To the contrary, Korth-eastern E. E. Co. v. Payne, 8 Eich. L. 177. In an act to provide for the construction of a highway between the villages of H and M, appointing commissioners to alter, &c., the public road " leading froni the vil- lage of H," held that " from " should be con- strued inclusively to effect the purpose of the act. Smith v. Helmer, 7 Barb. 416. ' By a contract, dated Nov. 25, 1848, A bound himself to pay a certain sum, if, at the expiration of one year from the date, B should perform a certain act. Held, that the doing the act by B on Nov. 26, 1849, was a seasonable performance. Oatman v. Walker, 33 Me. 67. Where a statute requires a stream to be kept open, for the free passage of fish, " from " May 5 to July 5, May 5 is excluded. Peables v. Hannaford, 18 Me. 106. A lease for a term of years " from the first day of July," commences to run on the second of July. Atkins v. Sleeper, 7 Allen, 487. The custom of the place determines whether a lease " from " a day includes or excludes the day. Wilcox v. Wood, 9 Wend. 346. The phrase, from a day, is to be con- strued to include or to exclude the day, according to the apparent intention of the parties as gathered from the context, the subject-matter, and all admissible evidence. Deyo V. Bleakley, 24 Barb. 9. See Day. FRUCTUS. Fruit. Used generally in the plural, the singular and plural being the same in form, meaning the organic productions of a thing; the increase; the profits ; also, the right to use the fruits or profits ; the usufruct. Fructus induBtriales. Industrial fruits; or, sometimes, fructus indus- trim, — fruits of industry. The fruits, profits, or increase of a thing obtained by the labor or industry of man, as dis- tinguished from those produced by the powers of nature. Such are crops of grain. Emblements are so termed. The expression fructus industriales in- cludes peaches, for they are the product of periodical planting and culture. Purner v. Piercy, 40 Md. 212. Fructus naturales. Natural fruits. The fruits, profits, or increase of a thing produced by the powers of nature solely. Such are the fruits of trees growing without cultiyation; the young of ani- mals; wool. Fructus pendentes. Hanging fruits. Fruits or increase of a thing, while re- maining united with the thing which produces them. They are considered a part of the principal thing. The term fructus stantes -^ standing fruits — is sometimes used in the same sense. Frustra petis quod moz es resti- turus. In vain you ask that which im- mediately you will have to restore. A maxim of the civil law, denying to a party the right to recover money which he may immediately be compelled to re- fund to the party from whom he claims it. It has sometimes been applied under the common law ; as in the case of one partner seeking to recover a demand from the partnership of which he is a member. Story Partnership, § 221. FUGITIVE. See Extradition; Fleeing. FULL. Occurs in several phrases which have a- technical signification. Full age. I'he age at which one at- tains full personal rights and capacities; majority ; generally, in England and the United States, the age of twenty-one years. Full blood. A term in the law of descent indicating that the persons spoken of are posterity of the same mar- ried pair. Thus two brothers are broth- ers of full blood if bom in wedlock of the same father and mother. See Half blood; Whole blood. Pull court. A session of a court composed of several judges, at which all are present. Functus ofScio. Having discharged the oflSce; having performed the func- tion. One who has fully performedhis official functions, and whose official au- thority has consequently ceased. Also, a thing, particularly an instrument or writing of any kind, which has fulfilled its purpose, and has therefore become of no virtue or effect. The phrase is gen- erally, and more properly, applied to persons; as to an arbiter, who, when he has rendered his decision, is functus officio, and can do nothing more by way of modification or review of his award. But the term is also applied to things; as to a writ executed and returned, or a FUNERAL 627 FUTURE bill of exchange received by the drawee and passed to the credit of the holder, and which, being then functus officio, cannot be further negotiated. FUNERAL EXPENSES. This term comprehends more than the shroud, the co£Bn, and the grave. Such expenses may in- clude carriage-hire, vaults, and tombstones. Donald v. McWhorter, 44 Miss. 124. Furiosi nulla voluntas est. An in- sane person has no will. The law re- gards an insane person as not possessing the power of intelligent exercise of his will, upon which both civU and criminal responsibility depend. An insane per- son cannot give the assent which is es- sential to constitute a valid contract or create an obligation binding upon him, or make a conveyance or other disposi- tion of his property. And, if unable to distinguish between right and wrong, he is incapable of the exercise of the will constituting the intent, which is an es- sential ingredient in crime. The latter application of the maxim is sometimes thus expressed, furiosus solo furore puni- tur, — an insane person is punished by his madness alone; that is, an in- sane person is not punishable for his acts. FURNITURE. Includes that which furnishes, or with which any thing is fur- nished or supplied ; whatever must be sup- plied to a house, a room, or the like, to make it habitable, convenient, or agree- able; goods, vessels, utensils, and other appendages necessary or convenient for housekeeping; whatever is added to the interior of a house or apartment, for use or convenience. Bell v. Golding, 27 Ind. 173. A bequest of " stock, plantation utensils, and household furniture" wiU not pass stills, boilers, smiths' tools, casks, &e., nor hogs fattening on the plantation of the tes- tator. Kendall v. Kendall, 5 Munf. 272. A cooking-stove is an article of house- hold furniture, necessary for upholding life, within the meaning of a statute exempting articles from attachment and execution. Crocker v. Spencer, 2 D. Chip. 68 ; Hart v. Hyde, 5 Vt. 328. A piano-forte is not so exempt. Dunlop V. Edgerton, 30 Vt. 224; compare Tanner B. Billings, 18 Wis. 163. A wooden statue of an elephant in. red top-boots, which was used as a sign in front of the "Elephantine Boot and Shoe Store," boots and shoes being hung over it, was held to be included in two mortgages of goods in the store, by the term " furniture " in the first, and " signs and furniture " in the second. Curtis v. Martz, 14 Mich. 606. A bequest of " all my household furni- ture " will pass all household effects except those kept for traffic or merchandise, in- cluding the furniture used by the testator in a boarding-school in which he lived. Hooper's Estate, 6 Phila. 364, 1 Brews. 462. A bequest of all the testator's " house- hold goods and furniture," passes every thiug about the house that has usually been used therewith, and that will tend to the comfort and convenience of the house- holder. Camagy v. Woodcock, 2 Munf. 234. Plate used in the family passes under a conveyance of " household goods and furni- ture." Bunn ». Winthrop, 1 Johns. Ch. 329. FUND. To fund a debt is to pledge a specific fund to keep down interest and re- duce the principal. When extinguishment of the debt is the object prominently con- templated, the provision is called a sinking fund. The term fund was originally ap- plied to a portion of the national revenue set apart or pledged to the payment of a particular debt. Hence a funded debt was a debt for the payment of the principal or interest of which some fund was appro- priated. Ketchum v. City of Buffalo, 14 N. Y. 356, 367, 377, 21 Barb. 294. A direction in a wiU to settle up and fund an estate so far as practicable, ordi- narily signifies, to capitalize with a view to the production of interest. Stephens v. Milnor, 24 N. J. Eq. 358. FUTURE. That which may be or will be hereafter. Future earnings. This term, used in a statute regulating trustee process, which declares an unrecorded assignment of future earnings invalid against such pro- cess, includes money to become due for labor and services rendered and materials furnished under an entire contract for building a house, by the terms of which such labor and materials are to be paid for when the house is completed. Somers v. KeUher, 115 Mass. 165. Future estate. An estate which is to commence in possession in the future. Such estates are otherwise termed ex- pectancies, or estates in expectancy. Theyinclude remainders and reversions, and would include also estates limited to commence at a future time, without any particular estate to support them in the mean time, were not such estates gen- erally prohibited. This definition ex- presses the sense in which the term is usually employed in English and Amer- ican law; but in New York a future es- tate is defined by statute to be " an es- tate limited to commence in possession at a future day, either without the in- tervention of a precedent estate, or on the determination by lapse of time, or otherwise, of a precedent estate created rUTUKE 528 GAME at the same time." 1 N. Y. Rev. Stat. 723, § XO. This definition excludes re- versions, which cannot be said to be created at the same time, because they are a remnant of the original estate re- maining in the grantor. The same statute, therefore, divides estates in ex- pectancy into estates commencing at a future day, denominated future estates, and reversions. See Estate; Remain- der; Reversiok. Future extensions. This phrase, in a railway contract for tolls on " any future extensions or branches," does not include a future extension not authorized at the time of the contract, but only such extensions as had already been authorized by law. Mor ris, &c. E. K. Co. v. Sussex R. R. Co., 20 N. J. Eq. 542. G. G, in law French, seems to have been a letter of equivalent force with the Eng- lish W; hence the two forms of some words, such as "gage" and "wage," meaning to give security ; "garranty," now " guaranty," and " warranty." Burrill. The words "guardian," for- merly "gardian," and "warden," also "ward," seem to present the same in- terchange of the two letters. GAGE. Security; something given to assure a payment or performance. Only important at the present day as entering into the word mortgage {q. v.), i.e. dead pledge, a security not delivered to the creditor. GAME. 1. A general tei-m for an- imals of a wild nature, usually pursued or sought by sportsmen for amusement. As generally used, the word seems prom- inently to suggest birds; but it embraces beasts, and in special connections may probably include fishes. But no general definition can be given indicating species that are within the term; for its exten- sion varies in different localities, accord- ing to differences in the fauna of differ- ent regions, in the habits of various communities, and the statutes of differ- ent jurisdictions. Game-keeper. One who has the care of keeping and preserving the game, being appointed thereto by a lord of a manor. Game laws. Laws regulating the taking or killing of birds, beasts, or fishes within the character or class deemed game. Such laws have long been in force in England, founded chiefiy on the idea of protecting the right of taking game, as a privilege of certain classes, particularly land-owners. This being their basis, they seem to have been gradually relaxed, in accordance with the decline of monopolies and special privileges, and the growing rec- ognition of popular rights. Through- out the United States, an opposite ten- dency is noticed. The chief basis of what are called game laws in this coun- try is the preservation of the breed of the animals embraced, in view of their value to the general public for food and for sport. Hence the game laws of the states are generally aimed at preventing destruction during the breeding season; and such laws have grown rapidly in number, stringency, and rigor of enforce- ment during recent years. 2. A term applied to distinguish a class of amusements. In popular use, the term has probably a broader mean- ing than in law. Webster defines it, a contrivance, arrangement, or institution designed to furnish sport, recreation, or amusement; and Worcester, any sport or amusement, public or private, usually as a match for the trial of skill or luck. But what gives occasion for the use of the word at all in jurisprudence is the tendency of certain devices for amuse- ment to incite the players to venture stakes, or third persons to make bets or lay wagers, on the success of one of the parties ; hence the distinguishing element of "a game" seems to be that it is de- signed to amuse or interest by inciting emulation between rival parties, in com- peting for a single success. Gaming, howeverf means not merely playing any game, but uniting in a game the terms of which are that the winner shall re- ceive something of value from the loser. GAME 529 GAME Gambling seems to be an equivalent term to gaming; we observe no impor- tant practical difference between the two words. Gaming is sometimes used for engage- ments between third persons, to give and receive value, according to the re- sult of a game; but for this, betting is the preferable term. Gaming is the act of persons who engage in playing a • game for stakes. The engagement of persons not players to pay money on the event of a game is more accurately called a bet or a wager. See Bet. It is the game, and not the name by which it may be called, that determines whether playing it is in violation of law or not ; the law is not to he evaded by changing the name by which it was known when prohib- ited. Smith V. State, 17 Tex. 191. In the popular mind, the universal ac- ceptation of " game of chance " is such a game as is determined entirely or in part by lot or mere lucls, and in which judgment, practice, skill, br adroitness have honestly no office at all, or are thwarted by chance. As intelligible examples, the games with dice, which are determined by throwing only, and those in which the throw of the dice regulates the play, or the hand at cards depends upon a dealing with the face down, exhibit the two classes of games of chance. A game of skill, on the other hand, is one in which nothing is left to chance. State v. Gupton, 8 Ired. L. 271. Illegal gaming implies gain and loss be- tween the parties by betting, such as would excite a spirit of cupidity. Paying for the table by the rub is not gaming within the meaning of the law which makes the house a nuisance. People v. Sergeant, 8 Cow. 139. It is not gaming to play on a licensed billiard-table, the loser to pay for the use of the table, for that is in accordance with the rule of the game, and the winner makes no profit by it, which is of the essence of gaming. Blewett v. State, 34 Miss. 606. Playing cards, dice, or any game of haz- ard, to determine who shall pay for liquor, or for any other article, is illegal gaming. Commonwealth v. Taylor, 14 Gray, 26; Commonwealth v. Gourdier, Id. 390; Mc- Daniel ». Commonwealth, 6 Bush, 326. Gambling includes playing billiards for the use of the table, or for beer, oysters, or cigars. State v. Bishel, 39 Iowa, 42; com- pare Clark V. State, 49 Ala. 37. The offence of gaming is complete by playing once, and does not require a repeti- tion of it. Cameron v. State, 15 Ala. 383 ; Swallow V. State, 20 Id. 30. If a party plays at a game, knowing that others the betting, he is guilty of gaming, under are statutes of Tennessee. Smith v. State, 5 Humph. 163. Gaming, in certain statutory connections, held synonymous with betting. State •>, rearson,2 Md.312; Wolz v. State, 33 TeK. 331. The terra gaming apparatus does not uiclude animals, such as fighting-cocks. Coolidge V. Choate, 11 Mete. (Mass.) 79. Nor hilliard-tables. See State v. Hope, 15 [nd. 474. A billiard-table is a gambling-table. Peo- ple ». Harrison, 28 Hoie. Pr. 247 ; and see Smith V. State, 22 Ala. 54. Betting on bagatelle is a violation of Va. Code, ch. 198, § 4, against " any game except bowls, chess," &c. Neal's Case, 22 Gratt. 917. A pack of cards is not a gambling de- vice within the meaning of Kan. crimes act, § 232. State v. Hardin, 1 Kan. 474. Cock-flghting is an unlawful game or sport ; and an innholder who suffers any person resorting to his premises to use or exercise that game or sport there is indict- able under Rev. Stat. ch. 47, § 9. Com- monwealth V. Tilton, 8 Hfetc. {Mass.) 232. Under Tennessee statutes to prevent gaming, it is an indictable offence to bet on a cock-fighting match. Bagley v. State, 1 Humph. 486. The game called " equality " is a " de- vice " prohibited by Md. act of 1797, ch. 110. United States v. Speeden, 1 Crunch C. Ct. 535. An election is not a game, nor can bet- ting on an election be deemed within a stat- ute against gaming. Woodcock v. Mc- Queen, 11 Ind. 14; State v. Henderson, 47 Id. 127 ; but see Gordon v. Casey, 23 ///. 70. Whether a faro bank is necessarily a common gaming-table, see United States v. Ringgold, 5 Cranch G. Ct. 378; United States V. Milburn, Id. 390; 4 Id. 719; United States v. Cooley, Id. 707. A gift enterprise, in which a trades- man sets his wares at market value, and by way of inducement to purchase gives each purchaser a ticket whereby he is entitled to a chance to win certain articles, the result to be determined by chance, is gaming. Bell V. State, 5 Sneed, 507. Horse-trotting or horse-racing is a game, within a statute to prevent gaming. Ellis V. Beale, 18 Me. 337 ; Tatman v. Strader, 2SIU. 493 ; Cheesum v. State, 8 Blackf 3.32 ; Wade V. Deming, 9 Ind. 35 ; Shropsliire v. Glasscock, 4 Mo. 536 ; Boynton v. Curie, Id. 599 ; and see Haywood v. Sheldon, 13 .Johns. 88. Gaming includes betting on a horse-race. Garrison v. McGregor, 51 III. 473. A horse-race is not a " game of hazard or skill," within the meaning of Gould's Dig. 371, §§ 9, 10. State ... Rorie, 23 Ark. 726. Horse-racing is not a game of chance, within the meaning of the Iowa statute to prevent and punish gambling. Harless v. United States, 1 Morr. 169. A horse-race is not a gambling device within the meaning of Mo. crimes act, art. 8, § 17. State v. Hayden, 31 Mo. 35. 34 GAOL 530 GAUGER Horse-racing along a public road is not gaming, in the sense of Tenn. Code, § 4882. Harrison v. State, 4 Coldw. 195. Betting on a horse-race is not gaming, within the meaning of Va. crimes act of March 14, 1848, § 10. Shelton's Case, 8 Gratt. 592. That "game," "gaming,"' and "gam- bling," include keno, see Miller v. State, 48 Ala. 122; Trimble v. State, 21 Ark. 355; Portis V. State, Id. 360; New Orleans v. Miller, 7 La. Ann. 651. The game of loto is a gambling de- vice, and keeping a loto-table at which the game is played for money is indictable. Lowry v. Stote, 1 Mo. Ti2. Betting upon the game of pool is within the prohibition of a statute against gaming. State V. Jackson, 39 Mo. 420. Selling prize candy-packages is gaming, and indictable. Eubanks v. State, 3 Heisk. 488. A raffle held not to be within the prohi- bition of certain statutes against gaming. Norton v. State, 15 Ark. 71; Common- wealth V. Garland, 5 Rand. 652. The game of rondo is not a gambling game within the statute prohibiting bank- ing games, and is not an indictable offence by statute or at common law. State «. Hawkins, 15 Ark. 259. When stocks are bought and sold, al- though upon speculation, if they are to be deliTcred, it is not a gambling transaction. Smith V. Bouvier, 70 Pa. St. 325. A ten-pin alley at a watering-place, kept for public play, and used solely for the ex- ercise and amusement of guests, without charge or profit, is within the statute against gaming. Spaight v. State, 29 Ala. 32. A ten-pin alley, kept for hire by the game, where the practice of the loser of the game paying for the use of the alley is habitually suffered, is not on this account a common gaming-house. State v. Hall, 32 N. J. L. 158. GAOL. See Jail. GARNISHMENT. Originally, a notice or warning of the pendency of a cause, given to a person not a party, to enable him to appear and explain his interest in the subject of the suit. In suits involving collection of debts by attachment of funds which may be owing from a third person to the debtor, it is necessary to give the third person warning of the suit, that he may appear and disclose the nature and amount of his indebtedness. Hence, in several of the states, attachment is known in this branch of that remedy as garnish- ment. The third person warned is called a garnishee. He is said to be gamisheed, or, sometimes, garnished. There is some confusion in the use of these two orthographies; if there is a distinction, it seems to be that the per- son warned is " gamisheed," the fund or property sought to be secured is " gar- nished." See Attachment. Garnishment was in use in England, in oases of detinue of charters, thus: a defendant might allege that certain deeds were delivered to him by the plaintiff and another person upon condi- • tion, and pray that the other person might be warned to glead with the plaintiff as to whether the conditions were performed or not, he, the defendant, being willing to deliver the property to the party entitled to it; and thereupon a process of garnishment, monition, or notice might issue, and all parties be brought before the court, that all the interests might be determined. It was thus analogous to interpleader. Termes de la Ley ; 3 Reeve Hist. Eng. Law, 448. Garnishment is a proceeding to apply the debt due by a third person to a judg- ment defendant, to the extinguishment of that judgment, or to appropriate effects be- longing to a defendant, in the hands of a third person, to its payment. Strickland V. Maddox, 4 Ga. 393. The object of gamisheeing is to know whether a party has funds in his hands be- longing to another, against whom plaintiff either has or expects to get judgment ; so that, after he has obtained judgment, he may also obtain judgment against the gar- nishee, for the amount of his judgment against the debtor, or for so much as there may be funds in the hands of the garnishee, due or belonging to the debtor. Rose v, Whaley, 14 La. Ann. 374. The proceeding of garnishment, as regu- lated by the Arkansas statute, is anoma- lous, being partly legal and partly equi- table. It is a civil suit, and not mere pro- cess of execution to enforce a judgment already obtained. Tnnstall v. Worthing- ton, Hempst. 662. The word garnishee is especially applied in law to a debtor who is warned by the order of a court of justice to pay his debt, not to his immediate creditor, but to a cred- itor of that creditor. The order is called a garnishee order ; and the process of laying hold of debts due to a judgment debtor, in order to satisfy the demands of the judg- ment creditor, is called attachment, or, in Scotland, arrestment. Mozhy ^ W. A garnishee is, in the eyes of the law, a mere stakeholder, a custodian of the prop- erty attached in his hands in the garnish- ment proceeding. Schindler v. Smith, 18 La. Ann. 476. GAUGER. The title of an officer GAVELKIND 531 GENERAL employed chiefly in administration of customs, excise or internal revenue laws, whose function is to examine all tuns, pipes, hogsheads, barrels, and tierces of wine, oil, and other liquids, and, if found correct, to give them a mark of allow- ance, as containing lawful measure. GAVELKIND. A species of tenure of lands which still governs throughout most of the county of Kent in England ; and is also to be found in some other parts of the kingdom, and which is sup- posed to have been the general custom of the realm in Saxon times, or down to about A.D. 1066 ; since which the feudal law of primogeniture superseded it. The principal characteristics of this tenure are these: At the age of fifteen, the tenant is of age sufficient to alien his estate by feoff- ment. The estate never escheated in case of an attainder for felony. The tenant may dispose of the lands by wUl. The lands descend, on an intestacy, not to the eldest son, but to all the sons together. The widow is endowed of half the lands of which her husband died seised, and the husband is tenant by curtesy of the half, although he may have no issue by his wife; but the estate of the hus- band or wife ceases by a second mar- riage. Termes de la Ley; Cowel; 1 Bl. Com. 74, 75; 2 Id. 84, 85; 4 Id. 408; 1 Steph. Com. 54, 210, 213; 4 /d. 483; Wharton. GAZETTE. The official publication of the English government, also called the " London Gazette." It is evidence of acts of state, and of every thing done by the queen in her political capacity. Orders of adjudication in bankruptcy are required to be. published therein; and the production of a copy of the " Gazette," containing a copy of the order of adjudication, is evi- dence of the fact. Mozley ^ W. GEMOT, or GEMOTE. A Saxon word signifying meeting. It occurs in some old compounds, naming the vari- ous public meetings known in Saxon times. The principal ones were: The folc-gemot, or general assembly of the people, held in a city or town, or consisting of the whole shire. It was held annually. The shire-geraot, or county court, which met twice during the year. The burg-gemot, which met thrice in the year. The hundred-gemot, or hundred court, which met twelve times a year in the Saxon ages; but afterwards a full, per- haps an extraordinary, meeting of every hundred was ordered to be held twice a year. The halle-gemot, or the court-baron. The ward-gemot, or ward meeting. The wittenagemot, or assembly of the wise men, now the parliament. GENERAL. 1. In its vernacular sense of comprehensive ; relating to a whole class, genus, or kind, general oc- curs in several technical phrases. General agent. An agent {q. v.) whom the principal employs to transact all his business of a particular kind. A general agent is one appointed to act in the affairs of his principal generally ; a special agent is one appointed to act con- cerning some particular object. Wood a. McCain, 7 Ala. 800, 804. A general agency exists where there is a delegation to do all acts connected with the particular business or employment. Story Agency, § 17 ; Trundy v. Farrar, 32 Me. 225 ; Famners', &c. Bank v. Butchers', &o. Bank, 16 N. Y. 125, 148. A general agent is not merely one sub- stituted in the place of another for trans- acting all manner of business, but a person whom a man puts in his place to transact all his business of a particular kind ; as to buy and sell certain kinds of wares, to ne- gotiate certain contracts, and the like. (Paley Agency, ch. 3, § 5.) A person em- ployed by another for a particular purpose, and acting imder limited and circumscribed powers, is a special agent. Jaques v. Todd, 3 Wend. 83; Jeffrey v. Bigelow, 13 Id. 618. G-eneral assembly. In some of the states, this is the title of the legislative body. General averiage, expresses that con- tribution to a loss or expense voluntarily incurred for the preservation of the whole, in which all who are concerned in ship, freight, and cargo, are to bear an equal part, proportionable to their respective in- terests. And for the loss incurred by this contribution, however small in amount, the respective owners are to be indemnlfled by their insurers. Padelford v. Boardman, 4 Mass. 648. Cases of general average arise where loss or damage is voluntarily and properly in- curred in respect of the goods on board ship, or in respect of the ship, for the gen- eral safety of both ship and cargo ; the loss GENERAL 532 GENERAL sustained by the particular owners having inured to the advantage of the owners gen- erally, it is only equitable to distribute, i.e. adjust, the loss ratably over all the owners ; and such adjustment is general average. The phrase, simple or particular average, is an inaccurate and misleading phrase, meaning nothing more than that a particular damage, e.g. the souring of a cask of wine, must rest where it falls. Brovm. General couacil. This name is sometimes applied to parliament. General credit The general credit of a witness is his character as a credit-worthy man ; and his particular credit is his credit as a witness in the particular action. Be- mis V. Kyle, 5 Abb. Pr. n. s. 232. General damages, are those which by implication of law result from a wrong or breach of duty, and may be awarded in the sound discretion of the jury, without requiring evidence of the exact loss. General demurrer. A demurrer which objects to a pleading in general terms as insufficient, without specify- ing the nature of the defect or objection. This is allowed in some cases. The rule allowing it varies in different juris- dictions, but the tendency is that a gen- eral demurrer presents substantial de- fects ; while objections to matters of form must be specified. General election. An election held throughout a state for state officers and officers pertaining to that organization of government which' is operative throughout the state; as distinguished from an election of officers for a particu- lar locality only. General field. Several distinct lots or pieces of land enclosed and fenced in as one common field. Mansfield v. Hawkes, 14 Mass. 440. General fund. This phrase, in New York, is a collective designation of all the assets of the state which furnish the means for the support of government and for de- fraying the discretionary appropriations of the legislature. People v. Board of Super- visors of Orange, 27 Barb. 575, 588. General insurance. See Insur- ANCB. General issue. This term is applied to the various pleas which rest the de- fence upon a general, that is, complete, unqualified denial of the substance of the declaration, information, or indictment, without offering any special matter whereby to avoid it. Such is the plea of not guilty in an action of tort or an indictment for a criminal offence ; a plea of never indebted in an action of debt, &o. Such pleas are called the general issue, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue. General jail delivery. See Jail. General jurisdiction. See Court. General land-offlce. A bureau in the department of the interior of the United States government, located at Washington, and charged with the gen- eral administration of the laws relative to the sale of the public lands, and with the custody of records pertaining there- to. It is termed the general land-office in distinction from the district land- offices, which are located in the several districts where lands are for sale, and have local duties to perform. General legacy. See Legacy. General lien. The right of a bailee to detain a chattel from its owner until payment be made, not only in respect of that particular article, but of any bal- ance that may be due, on a general ac- count between the bailor and bailee, in the same line of business. General orders, or rules. This phrase designates orders or rules of court, promulgated for the guidance of practitioners and the regulation of pro- cedure in cases of a class, or falling under some head of jurisdiction, as all bankruptcy cases; in distinction from orders or rules made in a particular cause. But the term general is not al- ways prefixed. What are usually cited as rules of court are the general rules. General owner, or property. These phrases are used with reference to the principle that a thing may be owned by one person, subject to some interest or right in it, which is of the nature of ownership, vested in another. The per- son in whom the title is primarily and principally vested is called the general owner, and said to have the general property ; while one who has a posses- sion and interest, a lien, &c., is called special owner, or said to have a special property. General (and special) property, are con- GENERAL 533 GENTLEMAN stantly used to denote, not the chattel it- self, but the different interests which sev- eral persons may have hi it. Stief v. Hart, 1 N. Y. 20, 25. General sessions. See Court of SESSIONS. General ship. A vessel which is open to carry goods for all merchants •who may apply; as distinguished from one which is chartered or let to partic- ular parties. A vessel in which the master or owners engage separately with a number of per- sons unconnected with each other, to con- vey their respective goods to the place of the ship's destination. Ward v. Green, 6 Cow. 173. General tail. An estate-tail where one parent only is specified, from whom the issue must be derived, as in a grant to A and the heirs of his body. General tenancy, in an enactment that " all general tenancies, in which the premises are occupied by the consent, either express or constructive, of the land- lord, shall be deemed tenancies from year to year," was held to mean such tenancies only as are not fixed and made certain in point of duration, by the agreement of the parties. Brown v. Bragg, 22 Ind. 122. General verdict. See Vekdict. General 'warrant. A warrant to ap- prehend the .persons suspected of a par- ticular offence, without naming individ- uals, has been called a general warrant. Such a warrant is, however, illegal. See Wharton; Bouvier. General 'warranty. This term is sometimes applied to the covenant of warranty, commonly inserted in con- veyances in American practice, — that the grantor will warrant and for ever defend the title of the grantee to the premises conveyed, — by way of distinc- tion from other special covenants for title. See Covenant. 2. General, in military law, is also the title of an officer high in command; but the authority and rank must be as- certained by the governing law. In the United States, general, alone, is the highest title that has been bestowed in the army. Rev. Stat. § 1094. The word is compounded with others in some titles of lower rank ; as lieutenant-general, brigadier-general. Generalia verba sunt generaliter inteUigenda. General words are to be understood in a general sense. A rule of construction ; signifying that general words in an instrument or statute are to be taken in their broad and general sense, unless some special restriction or limitation of their meaning is plainly expressed. Generalibus speciala derogant. Special provisions derogate from gen- eral. A rule of construction of general application to statutes, as well as to deeds and other instruments. Where- ever general and special provisions re- lating to the same subject-matter are to be construed together, the special words or clauses may limit the operation and effect of the general language, but are not to be limited or explained by it. So, as between different statutes upon the same subject, a special statute is not derogated frpm by a general provi- sion, even though, in some cases, the general statute is enacted subsequently. The maxim is sometimes expressed con- versely, generalia specialibus non dero- gant, — general provisions do not dero- gate from special. Generalis clausa non porrigitur ad ea quae antea sunt comprehensa. A general clause does not extend to those things which have been previously in- cluded ; a general provision is not applied to things provided for by a prior spe- cial provision. This rule of construction allows both general and special words in an instrument to have their due effect when construed together. It is a more limited statement of the rule expressed by the maxim, generalibus speciala dero- gant. GENTLE. A warranty that a horse was " well broke " might include a warranty that he was "gentle," as the greater in- cludes the less. But a. declaration that a horse was warranted gentle, and that he proved to be otherwise, is not supported by proof that he was not so trained as to be suited to a particular kind of work. The word gentle does not, in its ordinary or legal sense, import that the horse has re- ceived any particular training or teaching, but only that he is docile, tractable, and quiet. He may be perfectly submissive and obedient, and yet not have been taught what to do, or how to do it, when set to plough out corn or potatoes, or to rake hay. Bodurtha v. Phelon, 2 AUen, 348. GENTLEMAN, or GENTLEWO- MAN, In England, the name of a con- dition or degree between that of yeoman GENUINE 534 GIVE and that of esquire. It is also sometimes used as including all above the yeo- manry; the nobility are gentlemen; but nobility and gentry is the more common expression. Under the denomination of gentlemen are comprised all above yeoman ; whereby noblemen are truly called gentlemen. Smith de Rep. Ang. lib. 1, c. 20, 21. A gentleman is defined to be one who, without any title, bears a coat of arms, or whose ancestors have been freemen; and by the coat tliat a gentleman giveth, he is known to be, or not to be, descended from those of his name that lived many hundred years since. Jacob. The word was not employed as a legal addition until about the time of Henry V. The gentry may be divided into three classes : Those who derive their stock with arms from their ancestors are gentlemen of blood and coat-armor. They are, of course, the most noble who can prove the longest uninterrupted contiuuanci of nobility in the families of both their parents. Those who are ennobled by kniglithood or otherwise, with the grant of a coat-of- arms, are gentlemen of coat-armor, and give gentility to their posterity. Such have been scornfully designated "gentlemen of paper and wax." Those who, by the exercise of a liberal profession, or by holding some ofSce, are gentlemen by reputation, although their ancestors were ignoble, as their posterity remains after them. These are not really gentlemen, though commonly accounted such. Wharton. GENUINE. When used with reference to a note, imports nothing in regard to the collectibility of the note, or in regard to its legal effect or operation, other than that the note is not false, fictitious, simulated, spuri- ous, counterfeit ; or, in shortj that the ap- parent maker did make and deliver the note offered for sale. Baldwin i>. Van Deusen, 37 N. Y. 487. Gestio pro hserede. Behavior as heir. This expression was used in the Roman law, and adopted in the civil law and Scotch law, to denote conduct on the part of a person appointed heir to a de- ceased person, or otherwise entitled to succeed as heir, which indicates an in- tention to enter upon the inheritance, and to hold himself out as heir to cred- itors of the deceased; as by receiving the rents due to the deceased, or by taking possession of his title-deeds, &c. Such acts will render the heir liable to the debts of his ancestor. Mozley &W. GIFT. In modern law, signifies a transfer of property made without a con- sideration ; also, the thing given is popu- larly called a gift. A promise to give is not enforceable at law, for want of a consideration ; but a gift executed by delivery wiU be, in general, valid and operative as between the parties, and as respects personal property. It does not, however, bar the claims of creditors of the donor. As to the distinction between gifts between living persons and gifts in view of death, see Donatio. Gift and advancement are sometimes used interchangeably as expressive of the same operation. But while an advancement is always a gift, a gift is very frequently not an advancement. Dewee's Estate, 3 Brews. 314. GIST. The expression, gist of an action, means the essential ground of the right to sue ; the fact or matter with- out which the action could not be main- tained. This may in some cases be dis- tinct from the chief reason for damages. Thus, in an action for seduction, the loss of service is the gist of the action ; but the injury to the feelings of the father, which only enters collaterally into the action, may be the main ground of GIVE. In their ordinary and familiar ^.iJ signification, the words sell and give have^ not the same meaning, but are commonlyu^ used to express different modes of trans- ferring the right to property from one per- son to another. To sell means to transfer for a valuable consideration, while to give signifies to transfer gratuitously, without any equivalent. Parkinson w. State, 14 Md. 184. Give is a good word to pass real estate in a deed of gift. Pierson v. Armstrong, 1 Iowa, 282. Give implies transfer of title. Norton v. Woodruff, 2 N. Y. 153. The word give, in a conveyance in fee, implies a warranty, but the word grant does not. But this distinction has now be- come merely technical. Frost v. Raymond, 2 Cai. 188, 195. Give implies a personal warranty. Grant implies a covenant in law, when used in a lease for years, or, if it be not qualified by a covenant or warranty in fact, a general warranty. But, in an estate of inheritance, where the fee passes, then the word grant is neither a covenant in law nor a warranty. Grannis v. Clark, 8 Cow. 36. Whether give implies a warranty, see 2 Ala. N. s. 555 ; 7 Gill ^ ./. 311 ; 5 Me. 227 : 23 Id. 219; 14 Wend. 38; 1 Murph. 343; 2 Hill. Real Prop. 366. To give a reward by way of bribe, is to GLEBE 635 GOOD pass or deliver the reward or bribe immedi- ately to anotlier. To offer it, is to present it for acceptance or rejection ; to promise it, is to make a declaration or engagement that it shall be given ; and to procure it, is to obtain it from others. State v. Harker, 4 Harr. {Del.) 569. Give, in a statute prohibiting the giving of liquor to a minor, is synonymous with " furnish " or " supply," and includes a sale to the minor. Commonwealth v. Davis, 12 Bash, 240. Give time. To accord extension or forbearance to a debtor. GLEBE. The land of which a rector or vicar is seised in right of the church. {Termes de la Ley.) We most commonly (says Cowel) take it for land belonging to a parish church, besides the tithe. It is, in fact, a portion of land attached to a bene- fice as part of its endowment. Mozley &W. "^ GOD'S PENNY. See Denarius Dei. Groing off large. This is a nautical phrase, and signifies having the wind free on either tack. Ward v. The Fashion, 1 Newb. 8, 26, 6 McLean, 152, 170. _A vessel, in nautical technicality, "is going off large," when the wind blows from some point " abaft the beam ; " is going "before the wind," when the wind is "free," comes over the stern, and the yards of the ship are braced square across. Hall V. The Buffalo, 1 Newb. 116. For the reason that the impetus of steam vessels is controlled by human skill, they are considered as vessels navigating with a fair wind, or " going oH large," and, there- fore, bound to give way to sail vessels, beating to the windward on either tack. Ward V. The Fashion, 6 McLean, 162, 1 Newb. 8; The New Jersey, Ok. 415; The Neptune, Id. 483 ; The Washington Irving, Abb. Adm. 336; The Osprey, Sprague, 245; Red Bank Co. v. The John W. Gandy, 41 Bunt's Merch. Mag. (Nov. 1859), 577; 1 Phila. viii. 26. GOOD. This vernacular word occurs in several phrases in frequent use in jurisprudence. Writing the word good across the face of a check is the customary mode in which bankers at the present day certify that it wiU be paid, on presen- tation for that purpose. This practice of certification is of recent growth, but has assumed very great importance. The early decisions were not agreed upon the legal effect of thus oei-tifying or stamping a check as " good." One view contended for was, that it was information given by the bank of the state of the drawer's account at the time, but did not control his future drafts against it; if the certificate was truthful when given, the bank was not in fault if after-checks diminished the deposit so that it became too small to pay the certified check when pre- sented. Another view taken has been, that, by writing the check " good," the bank assumes the duty of protecting it; becomes bound to keep it good, and to that end may lawfully refuse to pay after-checks which would render the balance too small. The latter opinion has, upon the whole, prevailed. Mr. Daniel (2 Dan. Neg. Inst. § 1603) states the general result of the decisions to be, that, by giving the certificate good, the bank becomes at once the principal debtor. If it is agreed between the holder of the check, on a presentment of it, and the bank that the check shall be certified as "good," the legal effect is the same as if the fund had been paid by the bank to the holder, and by him redeposited to his own credit, and a certificate of deposit issued to him therefor. In other words, " a certified check is a short-hand certificate of de- posit in favor of the holder." By it the bank ceases to be the debtor of the origi- nal depositor, and becomes the debtor of the holder of the check. It cannot say, on presentment of the check, that there were in fact no funds of the drawer to meet it ; for its certificate is an assur- ance that there were such funds, and that it would apply them to the pur- pose. These doctrines (he says) are now universally settled. See also Wil- lets V. Phoenix Bank, 2 Duer, 121 ; Farmers' & Mechanics' Bank v. Butch- ers' & Drovers' Bank, 4 Duer, 219 ; Meads u. Merchants' Bank, 25 N. Y. 143. Thus the United States supreme court has held, in Merchants' Bank v. State Bank, 10 Wall. 648, that by the law-merchant of this country the cer- tificate of a bank that a check is good is equivalent to acceptance. It implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfac- tion, and that they shall be so applied whenever the check is presented for non-payment. It is an undertaking GOOD 536 GOOD that the check is good then, and shall continue good; and this agreement is as binding on' the bank as its notes of circulation, a certificate of deposit, or any other obligation. The object of cer- tifying a check is to enable the holder to use it as money. The doctrine is, however, founded upon the principle of estoppel and the injustice of allowing the bank to deny its certificate to the prejudice of those who have acted in reliance upon it; and it is subject to corresponding limita- tions. As pointed out by the New York court of appeals, in Ii-ving Bank v. Wetherald, 36 N. Y. 335, the certificate "good" possesses no extraordinary or hidden power. It is information that the maker has funds to meet the note. And if such a certificate is erroneously made, and the error is discovered and notice given to the presenter of the check, in time to make a re-presentation and charge the indorsers, the certifying bank is discharged from further lia-> bility. Good abearance, or behavior. Conduct conformable to law. Security for good behavior may be required upon proof of a reasonable ground to suspect the party of intending the commission of an ofEence. Blackstone speaks of good behavior as synonymous with good abearing, and as implying a restraint from acts that be contra honos mores, as well as contra pacem ; as the haunting of bawdy-houses ; words tending to scandalize the govern- ment; and abuse of the officers of jus- tice, especially in the execution of their office. 4: Bl. Com. 256. Good and collectible, as used in a guaranty of a note, mean " capable of be- ing collected ; " but do not require the ob- tauiing of a judgment, and an execution returned unsatisfied, as the only evidence that the demand is incapable of being col- lected. Sanf ord v. Allen, 1 Cush. 473. Where a note was guaranteed to be "good and collectible two years," held, that the guarantor was liable upon his con- tract at any time after the note became due, within two years. Marsh v. Day, 18 Pick. 321. I A guaranty that the note " is good " is in law a contract that the maker is solvent, and that the amount can be collected by due course of law. Cook ». Nathan, 16 Barb. 342 ; Curtis v. Smallman, 14 Wettd. 231. Good emd lawful Betum that the appraisers were " good and lawful free- holders," &c., imports that they were " dis- interested" as required by statute. Day V. Roberts, 8 Vt. 417; and see Aldis v. Burdick, Id. 21. Good cause, for setting aside a report of commissioners, imports some ground for action, clear and indubitable. Virginia, &c. B. E. Co. V. Henry, 8 Nev. 165. Good consideration. In a very proper sense of the words, any consid- eration which will sustain the contract or conveyance is a good consideration ; and the phrase, as used in the statute of frauds, is held to mean a valuable con- sideration. In another sense, it is op- posed to valuable. Considerations are divided into good and valuable; a con- veyance founded on relationship oi; nat- ural love and affection, is said to be founded on a good, though not valuable, consideration. In the statute of frauds (13 Eliz. ch. 5) the phrase " good consideration " excludes the consideration of nature or blood, and means only money or other valuable con- sideration. Dwarris Stat. 654. It is construed to mean valuable consid- eration, as between existing creditors and others claiming under the debtor. Cun- ningham V. Dwyer, 23 Md. 219. The meaning of "good consideration" in the statute of frauds is settled to be the same with " valuable." Hodgson i>. Butts, 3 Cranch, 140; Killough v. Steele, 1 Stew. #• P. 262. .Good faith. A creditor or purchaser in good faith is one who has loaned money or purchased property fairly, in the usual course of business, for an hon- est price, and without being cognizant of or implicated in any intent which the borrower or seller may have had to evade claims of his creditors or defraud some person interested in the matter. See Purchaser. Good order. In a bill of lading of bales of cotton, described therein as "in good order and well conditioned," these words have reference to the external con- dition of the cotton, importing that it was in good shipping condition at the time it was received on board of the vessel, but do not refer to or warrant the internal quality or condition of the cotton in the bales. Bradstreet v. Heran, 2 Blatchf. 116; The California, 2 Sawyer^ 12. The phrase, in good order, in a bill of lading of barrels of pork, refers to the good external condition of the packages, ana not to the soundness of the pork. West v. Berlm, 3 [owa, 532. The words, in good order and well con- GOODRIGHT 537 GOODS ditioned, used in a bill of lading, refer to the exterior and apparent condition of the goods and to their internal condition only so as may be inferred from external appear- ances. Keith D. Amende, 1 Bush, 455. Though a bill of lading acknowledging the goods to be in " good order " is open to explanation, still its recital cannot be over- thrown nor qualified except by very clear evidence. Bond v. E^ost, 6 La. Ann. 801. GOODRiaHT; GOODTITLE. The fictitious plaintiS in the old action of ejectment, most frequently called John Doe, was sometimes called Goodright or Goodtitle. GOODS. A word of general signifi- cation for all sorts of inanimate, mova- ble property. It does not seem to be used in an exact and uniform sense, with regard to what specific things are included under it. In some connections or instruments it is construed as more extensive than in others; in a will, for instance, it has been held sufficient to pass all personal estate, if not restrained by the context. Jarm. Wills. 692; 1 Eop. Leg. 250 ; Taylor v. Barron, 35 N. H. 484. When found in penal stat- utes, it is construed as limited to mova- bles belonging to the property of some person, which have an intrinsic value; and does not include securities, which are not valuable in themselves, but merely represent value. In construing agreements, the application of the term is often restricted ; but, in its legal sense, it includes aU tangible property, even living animals. Taylor v. Barron, 35 N. H. 4, 484. Goods includes shares of manufacturing stock. Ayres v. French, 41 Conn. 142. , That " goods," in a contract or deed, will not, as a general thing, include fixtures, see 1 Chitt. Gen. Pr. 90. Goods, in a statute giving an action on contracts for the transportation of goods, does not include money or bank-bills. Pumphry v. The Parkersburgh, 2 West. L. Mo 491. The words "goods or movables," in a will, carry bonds and money, unless there are other part« of the will 'repugnant to that interpretation. Jackson v. Robinson, 1 Yeates, 101. Goods and chattels. This phrase, in the fullest sense, includes any kind of prop- erty which is not freehold ; but in practice is most frequently limited to things mov- able, especially things movable in posses- sion. Mozley if W. This phrase, in contracts, includes not only personal property in possession, but written instruments, at least such as are of value, relating to business matters. Gibbs V. Usher, 1 Holmes, 348. It does not include dogs. State v. Lymus, 26 Ohio St. 400. It is the generic denomination of things personal, as distinguished from things real, or lands, tenements, and hereditaments. Wharton. It is not the proper descriptive phrase for bank-notes in an indictment for larceny ; they should be laid as the property, not the goods and chattels, of the prosecutor ; but " goods and chattels " may be stricken out as surplusage. Commonwealth v. Boud- vie, 4 Gray, 418 ; Morris' Case, 2 Leach, 525. In a statute regulating executions against property, it does not embrace real estate. Thompson v. Chauveau, 7 Mart. (La.) N. s. 331. Goods and chattels equivalent to goods, wares, and nTgrchandise. See Passaic Manuf. Co. v. Hoffman, 3 Daly, 495. Goods and merchandise. This phrase includes specie. American Ins. Co. v. Gris- wold, 14 Wend. 399. Shares in corporations are included in the statute of frauds requiring a written memorandum of a contract for the sale of goods, wares, or merchandise, by its terms as well as by its general policy. The words " goods " and " merchandise " are both of very large signification. Boma, as used in the civil law, is almost as extensive as per- sonal property itself, and in many respects it has nearly as large a signification in the common law. The word merchandise also, including, in general, objects of traffic and commerce, is broad enough to include stocks or shares in incorporated companies. Tisdale v. Harris, 20 Pick. 9. A policy on goods and merchandise will cover a curricle. Duplanty v. Commercial Ins. Co., Anth. N. P. 157. Goods and merchandise, in the act of congress of March 3, 1851, relative to the liability, of ship-owners for goods and mer- chandise, includes baggage of a passenger as well as goods shipped on freight. The general meaning of the term includes all personal estate. The cases in winch an in- surance of goods and merchandise has been held to cover only cargo depended upon a restricted usage of the word, with reference to the probable intention of the parties to a contract of insurance. Cham- berlain 0. Western Transp. Co., 44 N. Y. 305. Goods, -wares, and merchandise. Throughout the earlier duty laws of the United States, " goods, wares, and mer- chandise " is generally used as the proper, comprehensive clause for all descriptions of dutiable property. In the revision of the laws in 1873, mer- chandise alone was substituted as an equivalent, under a general provision GOOD-WILL 538 GRANARY (Rev. Stat. § 2766) that "the word mercliandise may include goods, wares, and chattels of every description, capa- ble of being imported." Silver dollars are "goods, wares, and merchandise" within section 50 of the revenue act of 1799, for the landing of which a permit from the custom-house is necessary. Landing them without permit involves the forfeiture of the vessel. The Elizabeth and Jane, 2 Mas. 407. Appurtenances or equipments of a ship, as a chain cable, or other articles, pur- chased bona fide for the use of the ship, are not " goods, wares, or merchandise " requir- ing a permit before they are landed. United States v. Chain Cable, 2 Sumn. 362 ; B. p. Weld V. Maxwell, 4 Blatchf. 136; United States v. Twenty-three Coils of Cordage, Gilp. 299. What was understood " by the words " goods, wares, or merchandise," as used in the English statute of frauds requiring a note in writing of any agreement for the sale of goods, wares, or merchandise for the price of £10 or upwards, when that statute was enacted, and for a century af- terwards, was the commodities bought and sold in trade and commerce. . The early dictionaries define merchandise as " com- modities or goods to trade with," and " goods " and " wares " by " merchandise " as a synonyme. Things made to order, pursuant to a contract for labor and materials to be furnished by the party who is to supply and be paid for the manufactured result, are not within these terms ; and such a con- tract is not within the statute. Passaic Manuf. Co. v. Hoffman, 3 Daly, 495. Goods, wares, and merchandise, as used in a statute of frauds, does not include an interest in an unpatented invention. Som- erby v. Buntin, 118 Mass. 279. This phrase held to include cattle. Weston i>. McDowell, 20 Mich. 353. That it includes gold coin, see United States V. American Gold Coin, 1 Woolw. 217. That growing annual crops are within it, see 8 Dowl. ^ R. 314 ; 10 Bam. Sr C. 446 ; 4 Mees. ^ W. 347 ; and cmOra, 2 Taunt. 38. That fixtures are not within the phrase, see 1 Crompt. M. ^ R. 275 ; 3 Tyrwh, 959 ; 1 Tyrw. ^ G. 4. Whether it includes stocks and evi- dences of debt, see 20 Pick. 9 ; Dudley, 28 ; 2 Pars. Cant. 330 ; 2 Kent Com. 510, note. Bank-bills are not within the meaning of a statute making carriers liable for the transportation of goods, wares, merchan- dise, &e. Sewall v. Allen, 6 Wend. 335, 365. GOOD-WILL. The advantage or ben- efit which is acquired by an establishment, beyond the mere value of the capital, stock, funds, or property employed therein, in consequence of the general public patron- age and encouragement which it receives from constant or habitual customers, on account of its local position, or common celebrity or reputation for skill or afflu- ence, or punctuality, or from other acci- dental circumstances or necessities, or even 5Erom ancient partialities or prejudices. Story Part. § 99 ; BeU v. Ellis, 33 Cal. 620; Smith V. Gibbs,44 N. H. 335, 843; Howe v. Searmg, 6 Bosw. 354, 370 ; Wharton. Good-win is the probability that the old customers will continue to come to the old place ; the right to use trade-marks of the firm, or the name of the firm. Eenn ». Bolles, 7 Abb. Pr. 202. The term good-will does not mean sim- ply the advantage of occupying particular premises which have been occupied by a manufacturer, &c. It means every advan- tage, every positive advantage, that has been acquired by a proprietor, in carrying on his business, whether connected with the premises in which the business is con- ducted, or with the name under which it is managed, or with any other matter carry- ing with it the benefit of the business. Glen, &c. Manuf. Co. v. Hall, 61 N. Y. 226. Inasmuch as the " good-will " of a busi- ness consists in the probability that cus- tomers will continue to come to the old place of business (17 Ves. 347), it is only co- extensive with the business carried on ; and the seller thereof may properly lease other property in the vicinity to another person who may carry on the same business, pro- vided there is no coUusiou, and the lessor has no interest in the business. Bradford V. Peckham, 9 R. I. 250. GRACE. This word is commonly used in contradistinction to right. Thus, in Stat. 22 Edw. III., the lord chancellor was instructed to take cog- nizance of matters of grace; being snch subjects of equity jurisdiction as were exclusively matters of equity. Again, days of grace {q. v.) is a phrase denoting extra days allowed by the cus- tom of merchants, after the maturity of a bill or note, according to its letter, for the payment thereof. The number of days allowed is three in England and the United States. It varies in different countries. See Wharton for a table. GRAIN. Even in a penal statute, m- cludes millet and sugar-cane seed. JHol- land V. State, 34 Ga. 455. It may include oats. A privilege, in a lease, of cultivating grain, confers the right to raise oats. , Smith v. Clayton, 29 N. J. L. 357. GRANARY. A building 21 by 15 feet, placed on a market garden, and used for storing tools and agricultural implements, and for storing grain and seed to be sown, fertilizers, and other things of a similar na- ture, was held not a warehouse or a granary, within the meaning of a statute making it a penal offence to enter such buildings in the nighttime and commit larceny therein State V. Wilson, 47 N. H. 101. GRAND 539 GRAND GRAND. Occurs in several com- pounds. Grand assise. A peculiar species of trial by jury introduced in the time of Henry II., giving the tenant or defendant in a writ of right the alternative of a trial by battle, or by his peers. It was abolished by 3 & 4 Wm. IV. ch. 42, § 13. Wharton. Grand bill of sale. An expression which is understood to refer to the instru- ment whereby a ship was originally trans- ferred from the builder to the owner, or first purchaser. 3 Kent Com. 133. Grand days. Certain festival days, in the customs of the English inns of court. Grand distress. A more, extensive kind of distress than ordinary, extending to all the goods and chattels of the party distrained within the county. It lay in those cases when the tenant or defendant was attached, and appeared not, but made default; and also when the other party made default after appearance. Termes de la Ley ; Cowd. Grand jury. A body of qualified persons, convened by the sheriff, accord- ing to law, to attend the session of des- ignated criminal courts, make inquiry concerning all complaints of the com- mission of offences which may be sub- mitted to them, and, in proper cases, re- tm-n indictments therefor to the court. By early English law, according to the Commentaries of Blackstone and Stephens, a grand jury must be com- posed from a body of twenty-four good and lawful men, which the sheriff of every county is bound to return to every session of the peace, and every commis- sion of oyer and terminer., and of general jail-delivery, to inquire, present, do, and execute all those things which on the part of our lord the king shall be commanded them. As many as appear upon the panel are sworn upon the grand jury, to the amount of twelve at least, and not more than twenty-three ; that twelve may be a majority. The grand jury are previously instructed in the articles of their inquiry by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, to hear evidence on behalf of the prosecution, and to in- quire, upon their oaths, whether there be sufficient cause to call upon the party accused to answer it. 4 Bl. Com. 302, 308; 4 Steph. Com. 361-368. The general features of the English grand jury are preserved throughout the United States; but details are differ- ently prescribed by the various statutes. The qualifications of a member of the grand juiy are prescribed by the local law, and differ in different states ; and the same may be said of the mode of summoning. Even the number is not uniform. In most of the states, the rule of from twelve to twenty-three is fol- lowed; but Mr. Bishop says (1 Bish. Or. Pro. § 854), that in Louisiana the num- ber is not to exceed sixteen; in Califor- nia, it must not be less than seventeen ; in Arkansas, not less than sixteen. The rule that at least twelve must con- cur in finding an indictment is prob- ably universal. According to Justice Field (charge to grand jury, 5 Am. Lata T. Rep. 255), the grand jury, which is of veiy ancient origin in England, was at first a body which not only accused, but might try, offenders. But later it be- came, and was at the time of the settle- ment of this country, an informing and accusing tribunal only, without whose previous action no person charged with felony could (except in a few special cases allowed in England) be put upon trial. In England, it has been regarded as an important protection of the sub- ject against oppression from unfounded prosecutions by the crown. In this country, it is maintained as a means not only of biinging to trial persons accused of offences upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether from the government, from partisan passion, or private enmity. It is the duty of the grand jury to see that par- ties against whom there is just ground to charge the commission of crime shall' be held to answer the charge; and, on the other hand, a duty to the citizen to see that he is not subjected to prosecu- tion upon accusations having no better foundation than public clamor or pri- vate malice. Thus the theory and leading object ia this counti-y of the grand jury's investi- gation is the protection of accused per- sons from being put to the trouble and expense of a trial upon groundless GRAND 640 GRANT accusations. Upon a criminal complaint being made, before the accased can be compelled to go into his defence, the charge and depositions must be sent be- fore the grand jury; the accuser and his ■witnesses must attend, and must satisfy twelve of the grand jury, according to former rules, that there is probable ground, in proof , for the accusation; or, according to later Tdews, that, so far as the evidence within reach of the grand jury can show, the accused is gfuilty. If this is not established, they "throw out," as it is termed, the bill, and the accused is discharged, without having been required to make preparation of counter evidence. If, however, the proofs adduced sufficiently warrant, in the opinion of twelve members, a con- viction, the biU of indictment prepared by the law officer is indorsed, " a true bin," and returned to the court as an indictment found. The charge then comes for public trial before a petit jury. The proof on the part of the ac- cuser must be formally put in anew. If it still presents a case of guilt, the accused must meet it by proof upon his behalf. The proceedings of the grand jurors are under oath, and private, except that they have the advice of the district at- torney; and, as a general rule, secrecy is enjoined upon them, as to all their acts and deliberations. Grand larceny. From the earliest times, in England, larceny has been di- vided into grand and petit, according to the value stolen ; the common-law rule being that the ofEence was grand lar- ceny if the goods were over the value of twelve pence; petit larceny, if they were of twelve pence or under. Mr. Bishop says (1 Bish. Cr. L. § 679), that in this country this distinction has been recognized as having a common-law ex- istence, and in some of the states it seems fuUy to prevail, though, perhaps, more or less modified by legislation ; in other states, it has ceased to be of im- portance. Grand seijeanty. One of the feu- dal tenures, the characteristie of which was that the tenant was bound, instead of serving the king generally in the wars, to do some special honorary service to the king in person, as to carry his banner, his sword, or the like ; or to be his butler, champion, or other officer, at his coronation. It was in most other respects like knight- service. Termes de la Ley; Cmvel; 2 Bl. Com. 73, 74; 1 Steph. Com. 200, ^01, 210. Grandchild. Grandchildren is used rather in opposition to and exclusive of children, than as confined to the next de> scent. It may include great-grandchildren. Hussey u'. Berkeley, 2 Eden, 194. Grandchildren does not include great- grandchildren, without something further to extend its signification. Hone v. Van Schaick,3 Barb. Ch. 488, 508; 3 N. Y. 538. Grandchildren, in a bequest, means legit- imate grandchildren, to the exclusion of illegitimates. Ferguson v. Mason, 2 Sneed, 618. GRANT, V. To convey ; to transfer property by writing; to vest title. Grant, re. : the act of transferring prop- erty; also the instrument by which such transfer is made. Grantor: the person by whom property is transferred to or vested in another. Grantee : the person to or in whom property is transferred or vested. 1. As a term of ordinary conveyanc- ing, grant, in its largest sense, compre- hends every transfer from one person to another of any species of property; and by modem writers it is frequently used with this signification. But, as origi- nally used, it denoted a species of com- mon-law conveyance appropriate to the transfer of incorporeal rights only. The ordinary mode of conveyance at common law was by livery of seisin, to constitute which an actual delivery of the posses- sion was requisite, and which was there- fore applicable only to corporeal things. Incorporeal rights, existing only in idea, could not be so transferred; and for them a mode of conveyance by writing was adopted, and the title passed by the delivery of the writing. Hence the dis- tinction between hereditaments and es- tates said to lie in livery, and those said to lie in grant. See Conveyance. The latter included not only hereditaments and estates absolutely incorporeal, such as rents, but also estates in expec- tancy, reversions, and remainders, in- capable of immediate delivery. The term, although seldom applied to ordi- nary personal property, was not re- stricted to real estate: it was especially applied to letters-patent, to titles of honor, advowsons, and other subject- GRANT 541 GRANT matters not capable of manual delivery. Thus the word came to include any transfer of property by an instrument in writing without the delivery of the possession ; and it is in this sense that it is commonly used, nearly always, too, with reference to realty, a grant of per- sonalty being usually termed an assign- ment or a bill of sale. This wider signification has been adopted or confirmed by several impor- tant English and American statutes. Thus the statute 8 & 9 Vict. ch. 106, provided that all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. So that the method of conveyance by deed of grant is, in England, no longer confined to incorpo- real hereditaments and future estates. In New York (by 2 Rev. Stat. 3d ed. 22, § 142), deeds of bargain and sale have long been deemed grants ; and in the western states it seems to be a gen- eral term for all conveyances. McVey V. Green Bay, &o. Ry. Co., 42 Wis. 532. A like use of the word prevails in the New England states, and many others ; but in some states it is still limited to conveyances of incorporeal heredita- ments, and to letters-patent from gov- ernment. The words appropriate to constitute a grant are "have given and granted." See Dbdi et conoessi. As a techni- cal word of conveyance, grant was for- merly held to imply a warranty of title, unless followed by a covenant imposing on the grantor a less liability. In Eng- land, however, under the statute 8 & 9 Vict, already mentioned, the word grant is not to imply any covenant, except so far as it may do so by force of any act of parliament. In some of the United States, as New York, no implied cov- enants in deeds of conveyance are recog- nized; and in the others, the rule by which a warranty may be implied from this word has been variously construed and applied, according to the nature of the estate conveyed, — as whether of freehold or for years, or whether the word grant is used alone, or in connec- tion with "give," "bargain and sell," "demise," Sec. The tendency of the decisions appears to be towards the doctrine that " grant " does not con- stitute a warranty of title in conveyances of freehold estates ; and that in convey- ances of estates for years, — that is to say, leases, — if a wan-anty is implied, the implication is drawn from the words of leasing rather than from the word grant. According to Blaekstone, a grant is dis- tinguished from a gift as being made upon some consideration or equivalent, whereas a gift is gratuitous. But the soundness of this distinction is fairly open to question. Modet/ Sr W- Tlie term grant, in Scotland, is used in reference, 1, to original dispositions of land (as when a lord makes grants of land among ten,ants); 2, to gratuitous deeds. Paterson. In such case, the superior or donor is said to grant the deed ; an expres- sion totally unknown in English law. Moz- hy Sr W. As distinguished from a mere license, a grant passes some estate or interest, corpo- real or incorporeal, in the lands which it embraces ; can only be made by an instru- ment in writing, under seal ; and is irrevoca- ble, when made, unless an express power of revocation is reserved. A license is a mere authority ; passes no estate or interest whatever ; may be made by parol ; is re- vocable at will; and, when revoked, the protection which it gave ceases to exist. Jamieson v. Millemann, 3 Duer, 255, 258. The general word grant may compre- hend both the incipient and the complete title. United States v. Clarke, 8 Pet. 436, 450. The word grant is not a technical word, like enfeoff, and although, without limita- tion, it will carry an estate in the thing granted, yet, if used in a restricted sense, the grantee will take but a naked trust for the benefit of the grantor. Rice v. Eaihoad Co., 1 Black, 358. Grant was anciently used as applicable more particularly to a conveyance of in- corporeal hereditaments, or of such prop- erty or rights as could not be transferred by livery of seisin ; but the term has a more comprehensive signification, and includes a demise or lease. Darby v. Callaghan, 16 N. Y. 71, 75. The word grant, in a lease for years is a warranty of the lessor's title. Grannis v. Clark, 8 Cow. 36. If an estate for years be granted by an indenture of lease, the words "grant and demise " import covenants of warranty and for quiet enjoyment; and such covenants may be stated in the declaration, although not contained in the lease in express terms. Barney v. Keith, 4 Wend. 502. The words " make over and grant " are sufficient to convey the grantor's interest under the statute of uses. Jackson v, Alex- ander, 3 Johns. 484. GRANT 542 GRATIS Grant, bargain, and sell. The words "grant, bargain, sell," &c., in a deed of bargain and sale, do not imply a warranty of title. Rickets ». Dickens, 1 Murph. 343 ; Powell V. Lyles, Id. 348. The words "grant, bargain, and sell," in a conveyance, do not imply that the grantor is the absolute owner of the prem- ises conveyed. Taggart v. Eisley, 4 Oreg. 235. The words " grant, bargain, and sell," in a deed, imply a covenant against incum- brances. Blossom V. Van Court, 34 Mo. 390. But not a covenant of seisin. Carter v. Soulard, 1 Mo. 576. The words " grant, bargain, and sell," in a deed, amount to an express covenant that the grantor was seised of an indefeasible estate in fee-simple in the premises con- veyed, and also a covenant for quiet enjoy- ment in favor of the grantee. Hawk v. McCuUough, 21 m. 220. The words " grant, bargain, and sell," in a deed, do not import an absolute or gen- eral covenant of seisin or against incum- brances, but amount only to a covenant that the grantor has done nothing to defeat the estate granted. Roebuck v. Duprey, 2 Ala. 585; WhitehiU v. Gotwalt, 3 Pa. 313; Freeman v. Pennock, Id. 317 ; Gratz o. Ewalt, 2 Binn. 95 ; Seitzinger v. Weaver, 1 Rawte, 377; Prettyman v. Wilkey, 19 72. 235 ; Latham v. Morgan, 1 Smed. If M. Ch. 611. Under the statute of Alabama, the words " grant, bargain, sell," are all necessary in a deed to create the statute covenant that the grantor was seised of an indefeasible estate in fee-simple, &c., and for quiet en- joyment ; that one or two of them are used is not enough. Gee v. Pharr, 5 Ala. 586 ; Claunch v. Allen, 12 Ala. 159. Where a person executes a conveyance for land, to which he has no title, by deed containing the operative words, "grant, bargain, and sell," a title subsequently ac- quired by him will inure to his grantee without there being any covenant of gen- eral warranty expressed in such deed. The words " grant, bargain, sell," of themselves, under the statute, import a sufficient war- ranty to pass an after-acquired title. And this rule applies, notwithstanding the grantor acquires the title subsequent to the commencement of a suit by the grantee to recover damages for a breach of the cov- enants of seisin and of good right to convey, contained in his deed, if acquired prior to the assessment of damages in such action ; and notwithstanding the deed, by means of which the grantor thus acquires title, was not recorded, or was improperly withheld, or has been lost or destroyed. When the land is conveyed to the grantor, the title vests in his prior grantee, and remains in him, whatever may become of the deed. King V. GUson, 32 lU. 348. A deed which "grants, bargains, and sells all the right, title, and interest" of the grantor is merely a quitclaim convey- ance, and inoperative to convey an after- acquired title. Butcher v. Rogers, 60 Mo. 138. The words "grant, bargain, sell, and convey," in a deed, operate not merely to release, but to transfer, any interest which the grantor had in the granted premises at the date of the deed. Muller v. Boggs, 25 CoH. 175. Grantee. Means the purchaser of an estate, and does not include a mortgagee. Van Rensselaer v. Sheriff of Albany, 1 Cow. 501, 509. Thfi grantee of a patent is one who has transferred to him, in writing, the exclusive right, under the patent, to make and use, and to grant to others to make and use, the thing patented, within and throughout some specified part or portion of the United States. Such right must be an exclusive sectional right excluding the patentee therefrom. Potter v. Holland, 1 Fish. 327, 4 Blatchf. 206. 2. Grant is, in modern usage, fre- quently employed to designate a trans- fer by a government of some portion of the public domain,, as opposed to a con- veyance or deed by an individual. In this use it often means, in the American cases, the act of a state, or of the United States, or of a government formerly sov- ereign within our territory, in transfer- ring some parcel of public lands induced by motives of public policy, as to stimu- late settlement, to aid a railroad, to en- dow schools, &c. ; and also the instrument by which such transfer is made ; rather than a disposal of the public lands for money, which is usually by letters-patent. These grants by government are often called government grants or public grants, to distinguish them from deeds. They are the origin and foundation of private titles to land, in various parts of the country, and are subject to some peculiar rules; as to which see U. S. Dig. tit. Grants. GRATIS DICTUM. A voluntary as- sertion. A statement which a party is not bound to make, and as to which, therefore, he is not held to precise accu- racy, nor liable in damages for an in- jury to one misled thereby. Naked assertions, though known to be false, are not a ground of action, as be- tween vendor and vendee. Such are asser- tions by the vendor, — that his estate is worth so much, that he gave so much for it, that he has been offered so much for it, or has refused such a sum for it; which, though known by him to be false, and though uttered with a view to deceive, are GRAVAMEN 643 GROSS not actionable. But fraudulent misrepre- sentations of particulars in regard to the estate, which the buyer has not equal means of knowing, and where he is induced to forbear inquiries that he otherwise would have made, are not to be viewed in the light of assertions gratis dicta; and therefore, where damage ensues, the party guilty of the fraud will be liable for the injury sus- tained. Medbury v. Watson, 6 Mete. (Mass.) 246. GRAVAMEN. 1. When we speak of the gravamen of a charge or accusation, we mean that part of it which weighs most heavily against the accused. 2. The word is applied specially to griev- ances alleged by the clergy, and made by them a subject of complaint to the arch- bishop and bishops in convocation. Moz- les&W. GREAT SEAL. A seal by virtue of which a great part of the royal authority is exercised. The office of the lord chan- cellor, or lord keeper, is created by the de- livery of the great seal into his custody. Modey Sf W. GREENBACK. The popular and al- most exclusive name applied to all United States treasury Issues. It is not applied to any other species of paper currency ; and, when employed in testimony by way of de- scription, is as certain as the phrase " trea- sury notes." Hickey v. State, 23 Ind. 21. GRETNA-GREEN MARRIAGES. An expression formerly applied to mar- riages contracted in Scotland by parties who had gone there for the purpose of being married without the delay and for- malities required by the law of England. They were usually celebrated at Gretna Green, in Dumfriesshire, as being the near- est and most convenient place for the pur- pose. They have been practically abolished by Stat. 19 & 20 Vict. ch. 96, passed in 1856, vfhich requires that one at least of the parties contracting it should have, at the date thereof, his or her usual place of residence in Scotland, or should have lived there for twenty-one days preceding such marriage. 2 Steph. Com. 259, note. GROSS, adj. Signifies, generally, great, large, entire, undiminished; thus, gross receipts are the receipts at large, before they are diminished by any de- duction for expenses, to ascertain pro- fits. The word has some technical uses in special connections. In gross, signifies, in English real- property law, the independent owner- ship of incorporeal property. A right in gross is one which is annexed to or inheres in the person of the proprietor, and not in virtue of his being the owner or occupier of specifically determined land. It applies to a right unconnected with any thing corporeal, and existing as a separate subject of transfer; thus the cases speak of a common in gross, an advowson in gi-oss, &c. Gross average, in maritime law, is sometimes used for general average ; being that kind of average which falls upon the gross amount of ship, cargo, and freight. 3 Kent Com. 232. Gross negligence. Gross has been employed to designate that degree of negligence which is extreme, which ex- ceeds ordinary carelessness or impru- dence. The idea is scarcely capable of exact definition. Story says that it is the want of even slight diligence ; and Sir William Jones, that it is the want of such care as even the most inatten- tive man bestows upon his own con- cerns. Story Bailm. § 17; Jones Bailm. 118; Nealo. Gillett, 23 Conn. 437. It is defined as meaning, not a malicious intention or design to produce a partic- ular injury, but a thoughtless disregard of consequences ; the absence, rather than the actual exercise, of volition with reference to results. As respects actions founded on negli- gence, the tendency of later cases is to relinquish the attempt to draw sharp distinctions between degrees of negli- gence, and to allow each case to be de- cided on its own circumstances. Thus, in Wilson v. Brett, 11 Mees. Sf W. 113, which was an action against a bailee, Baron Rolfe said he could see no differ- ence between negligence and gross neg- ligence, the latter being the same thing, with the addition of a vituperative epi- thet; and he left it to the jury to say whether under the circumstances the defendant was chargeable with culpa- ble negligence. So in McPheeters v. Hannibal, &c. R. R. Co., 45 Mo. 22, where the question was of negligence on the part of a railroad in running over live-stock, the court observed that the word gross, often used in discussing these cases, was wholly unnecessary; the question is, was there actual negligence which the jury find sufficient? But stipulations in contracts some- times provide against gross negligence ; in a case of this sort the English ex- chequer chamber, in Beal v. South Devon R. Co., 3 Hurlst. §■ C. 837, defines gross GROUND 544 GUARANTEE neglect as the failure to exercise reason- able care, skill, and diligence ; such care, &c., as is reasonably to be expected from the party in the circumstances and under the duty resting upon him. This definition certainly differs but lit- tle from that usually given of ordinary negligence, and develops little meaning from the adjective gross. Gross negligence is not fraud, though evidence tending to show fraud. Lin- coln V. Buckmaster, 32 Vt. 652 ; Wilson V. Raiboad Co., 11 GiU §• /. 58; Shearm. §■ R. Negl. § 3. GROUND. Land; the soil. The term does not exclude buildings ; or, rather, is not confined to land which is not built upon. Ferree v. Sixth Ward School District, 76 Pa. St. 876. Ground rent. Where the land-owner, instead of erecting buildings upon his land and leasing the two, leases the land only, allowing the tenant to erect such buildings as he requires, the rent re- served is often called a ground rent. GUARANTEE, v. To assure or engage that another person shall pay or perform what he has promised; to undertake to be answerable for the duty or obligation of another. Guaranty, n. -. an agreement to an- swer for payment of a debt or perform- ance of a duty or obligation by another. Guarantor : one who agrees to be respon- sible for another's payment or perform- ance of a debt or duty. Guarantee, n. : one to whom such an agreement is made. There is want of uniformity in the orthography of these words. There is fair authority for using guarantee as the name of the engagement, and the verb is sometimes spelled guaran^^. But we recommend the spelling above given, using guaranty for the noun denoting the engagement, and guarantee for the verb, and for the noun denoting the per- son to whom it is given. A guaranty may be for a single debt or obligation, or it may be for the suc- cessive transactions which the principal may have with the guarantee. This last kind is called a continuing guaranty. Where A became bound to B for any debt which C might contract with him not exceeding jEIOO, this was held a contmuing guaranty. Merle v. Wells, 2 Camp. 413. Guaranty and warranty are derivatives from the same root, arid are identical in signification and effect, the former usually, but not always, denoting a parol promise, and the latter a covenant in a conveyance. Ayres v. Findley, 1 Pa. St. 501. A guaranty is a promise to answer for the debt, default, or miscarriage of another person, for which that other person remains liable. It is usually a simple contract ; and the agreement or memorandum expressing or evidencing it must be in writing, by the English statute of frauds, and must contain all the material terms ( Saunders v. Wakefield, 4 fl. ^ Aid. 595), excepting that under the Stat. 19 & 20 Vict. ch. 97, § 3, the consideration need not appear in the writing. Brown. A guaranty is an undertaking by one person to be answerable for the payment of some debt, or the due performance of some contract or duty by another person who himself remains liable to pay or per- form the same. Stcnry Prom. N. § 457. It is a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another per- son, who is in the first place liable to such payment or performance. Fdl Merc. Guar. 1 ; 3 Kent Com. 121. The primary meaning of guaranty is, a collateral undertaking ; not an original one. Dole V. Young, 24 Pick. 250. A guaranty is a contract that some par- ticular thing shall be done exactly as it is agreed to be done, whether it is to be done by one person or another, and whether there be a prior or principal contractor or not. Redfield v. Haight, 27 Conn. 31. The terms guaranty and suretyship are sometimes used interchangeably ; but they should not be confounded. The contract of a surety corresponds with that of a guarantor in many respects ; yet important differences exist. The surety is botmd with his principal as an original promisor ; he is a debtor from the beginning, and must see that the debt is paid, and is held ordinarily to know every default of his principal, and cannot protect himself by the mere indul- gence of the creditor, nor by want of notice of the default of the principal, however such indulgence or want of notice may in fact injure him. On the other hand, the contract of a guarantor is his own separate contract ; it is in the nature of a warranty by him that the thing guaranteed to be done by the principal shall be done, — not merely an engagement jointly with the principal to do the thing. The original contract of the principal is not his contract, and he is not bound to take notice 'of its non-performance ; therefore the creditor shoiUd give him notice ; and it is univer- sally held, that if the guarantor can prove that he has suffered damage by the failure to give such notice, he will he discharged to the extent of the damage thus sustained. It is not so with a surety. McMillan v. Bull's Head Bank, 32 Ind. 11 ; s. p. Durham V. Manrow, 2 N. Y. 533. GUARDIAN 545 GUARDIAIT The use of the future tense, " I will guar- antee," does not necessarily imply a mere offer to guarantee, but when acted upon may well operate as a present undertaking. McNaughton v. Conkling, 9 Wis. 316. In Pennsylvania, it has been held that guaranty imports an obligation to pay, &c., provided due diligence has been used to col- lect from the principal. Johnson v. Chap- man, 3 Pa. 18; Parker v. Culbertson, 1 WaU. Jr. 149. GUARDIAN. In a general sense, a custodian, keeper, or protector. It usually signifies, in jurisprudence, a per- son who, in virtue of a lawful appointment for the purpose, has the care of the per- son or property of another deemed dis- qualified to act for himself. The dis- qualification which most frequently gives rise to this appointment is that of in- fancy. " Guardianship " may well be used for the care authorized over idiots, lunatics, habitual drunkards, spend- thrifts, and the like; but a guardian of this class is, under many of the statutory systems authorizing the appointment, styled "committee." The term guardian, or, in the old spelling, gardian, seems the same, ety- mologically and in original meaning with warden, — g and w being inter- changeable letters in a number of law French words; and in the correlative, ward, the person under guardianship, the initial w is retained. The word guardian suggests the idea of an appointment, an authority con- ferred by distinct judicial act. It is, in- deed, common and not incorrect to say that the father is natural guardian of his child; and without any appointment the father exercises all of, and even more than, the powers involved in guardian- ship, and in that sense is a guardian with- out having been judicially designated. But the parental relation is not within the notion usually conveyed by the term guardianship. There may, however, be an appointment of the father to act as guardian to the child, as where the child in infancy inherits property for the care of which letters must be issued. In these cases the father acts in the double capacity. The law of guardianship is most nat- urally divided into guardianship of the person and of the estate. That of the person is a relation essentially the same VOL. 1. with that of parent and child ; and the guardian has been called a temporaiy parent. That of the estate bears a closer resemblance to trusteeship. The same person is often guardian of both the person and the estate of the ward ; but not necessarily, for these may be kept distinct. So, too, there may be joint guardians, as in other trusts. Schouler Dom. Eel. 389. Various species of guardianship have been recognized in English law. Several have become obsolete, or are for otherrea- sons unimportant in this country. The chief kinds of guardians retained in use are guardians by nature, guardians for nurture, guardianship in socage, testamen- tary guardianship, and chancery guardian- ship. The first two scarcely diifer from the natural right of parents to care for and control their offspring; Mr. Mac- pherson in England (Macphers. Inf. 52, 58), and Mr. Schouler in this country (Schouler Dom. Rel. 391), consider them, we think with good reason, as practically one. This guardianship extends to the person only. Guardianship in socage arises, at common law, when an infant under fourteen acquires legal title to real prop- erty ; it does not exist if the property is merely personal, nor upon an equitable title only. The guardian in socage is charged with the custody of the young heir's person and estate, with the col- lection of rents and profits, care of title- deeds, and maintenance. His powers are, in general, commensurate with these duties. But this form of guardianship has fallen into disuse. Testamentary guardianship was in- stituted by Stat. 12 Car. 11. ch. 24, and guardians of this class are sometimes called statute guardians. The statute conferred upon the father a power not accorded by the common law, to desig- nate by deed or will a guardian for the person and estate of his child. See Lord V. Hough, 37 Cal. 660, for the relative powers of a guardian of this Guardianship by appointment of a court of equity has, in recent times, nearly superseded the other kinds. The court of chancery is, speaking generally, the judicial conservator of the property GUARDIAN 546 GUARDIAN interests of infants, and will appoint, upon a bill or petition showing the proper facts, a guardian of the person and estate, or, where the interests of the ward in a pending suit are alone in- volved, a guardian of the person only. Throughout the United States, guar- dianship is simpler than in England, and more definitely regulated by stat- utory directions, varying in their details in the different states. The parental right of custody generally takes the place of any distinct relation of guar- dianship by nature and nurture. Guar- dianship in socage is scarcely known. Testamentary guardians may, in most of the states at least, be created; and so may chancery guardians, applying that term to guardians appointed by a court, such as in many of the states ex- ists (usually the supreme court) , clothed with the general equitable powers of the English chancery. Besides these are a class which Mr. Schouler considers, with good reason, should be distinguished from chancery guardians, and to which he applies the name probate guar- dians. These are such as are appointed by the court of probate jurisdiction, by whatever name known: ordinary, orphan's, pi'obate, or surrogate's court, in the exercise of the statutory powers conferred upon it. These guardians are, in general, of the person, of the estate, or of both. Their powers, duties, and liabilities are such as are prescribed by the local law. This form of the re- lation is the one most generally known and used throughout the United States. A guardian is one that legally has the care and management of the person or the estate, or both, of a child, during his minor- ity, whose father has deceased. Reeves Dom. Bel. 311 ; Bass v. Cook, 4 Port. 390. Of guardians o£ cliildren there are several species : 1. A guardian by nature. A father is so called in respect of the guardianship which belongs to him over the person of his heir-apparent, or of his heiress presump- tive. 2. Guardian for nurture. A father is so called in respect of the guardianship of all his children ; and, after the father's decease, the mother. This guardianship is said to last only to the age of fourteen years. But though after that age the father or mother may not be properly designated as guardian for nurture, yet the parent is understood to stand substantially in the capacity of guar- dian to his children so long as they are minors, by having the care and control of their persons during that period. 3. Guardian in socage is one who has the care of the estate as well as the person of a minor. This species occurs where the legal estate in lands or other hereditaments held in* socage descends upon a minor ; in which case the guardianship devolves upon his next of blood, to whom the inheritance can- not descend. This guardianship lasts till the age of fourteen years. 4. Guardian in chivalry. If the heir of an estate held by chivalry (or knight^ser- vice) was under twenty-one, or, bemg a female, was under fourteen, the lord of whom the land was held was entitled to the wardship of the heir, and was called guar- dian in chivalry. This kind of guardian- ship entitled the lord to receive the profits of the heir's land without accounting for them. It ceased to exist in 1660, when the military tenures were abolished by Stat. 12 Car. n. ch. 24. 5. Guardian by statute is a guardian ap- pointed by virtue of Stat. 12 Car. II. ch. 24, passed in 1660, which provides that a father may, by deed or will, dispose of the custody, after his death, of such of his children as should be infants (t.e. under age) and un- married at his death, or should be born posthumously, to any person he pleases, in such manner as to be effectual against all persons claiming as guardians in socage or otherwise. 6. Guardian by election is one appointed by an infant having lands in socage, when the guardianship in socage has terminated by the infant attaining the age of fourteen. This guardianship is now almost wholly disused. 7. Guardian by appointment of the court of chancery. This happens where a father has died without exercising his power of ap- pointing guardians ; also where the father's misconduct is such as to make it improper that his children should continue under his control. But the court will not in general appoint a guardian to an infant not pos- sessed of property. 8. Guardian by custom. A guardian who is such by local custom. In copyholds, this belongs of common right to the next of blood, to whom the copyhold cannot de- scend ; and, in London, to the mayor and aldermen. It is said, however, to have fallen into disuse. 2 Steph. Com. 329 ; Moz- ley t W. Gruardian ad litem. A person ap- pointed by a court of justice to appear for and repi-esent a minor whose inter- ests require that he should bring a suit, or who is a necessary or proper party defendant. Such an appointment does not seem to involve any relation of guardianship in any full or significant sense of the term, so little is any custody of person or estate involved. The guar- GUEST 647 GmLD dian ad litem merely represents or acts for the ward in the various steps and stages of the suit. The term next friend, also employed to designate such a representative, seems better to corre- spond with his real position and duties; but guardian ad litem is in settled use. Guardian of the cinque ports. An- other name for the warden of the cinque ports. Guardian of the peace. A person intrusted with the keeping of the peace, as conservator thereof. Guardian of the poor. Persons hav- ing the management of parish work- houses and unions are, in England, styled guardians of the poor. The guar- dians are elected by the owners of prop- erty and rate-payers in the parish; and, in the case of two or more parishes being consolidated into one union for the re- lief of the poor, are elected by the own- ers and rate-payers of the component parishes. 3 Steph. Com. 47, 50. Guardian of the spiritualities. The person to whom the spiritual jurisdiction of a diocese is committed during the vacancy of a see. Cowel ; Tomlins. Guardian of the temporalities. The person to whose custody a vacant see or abbey was committed by the king. Tomlin/t, GUEST. The rule^ of law, that an innkeeper must receive as guests all who apply, that he is liable for their bag- gage, that he has a lien upon it for his charges, &c., have given rise to some decisions as to who is deemed a guest at an inn. In order to constitute one a guest at a hotel, it is not necessary that he should be there In person : it is sufficient if his prop- erty is there in charge of his wife, agent, servant, or some other member of his family. But tlie property must be tliere under such circumstances that the law will presume the possession to be in him, and not in the bailee in charge of it. Coykendall v. Eaton, 55 Barb. 188. A townsman or neighbor may be a traveller, and therefore a guest at an inn, as well as he who comes from a distance, or from a foreign country. Walling v. Potter, 35 Conn. 183. A guest, as distinguished from a boarder, is bound for no stipulated time. He stops at the inn for as short or as long time as he pleases, paying, while he remains, the cus- tomary charge. Stewart v. McCready, 24 How. Pr. 62. The fact that a traveller who is received at an inn as a guest makes an agreement with the innkeeper for the price of his board by the week, does not impair or affect his rights as a guest. Berkshire Woollen Co. ». Proctor, 7 Gush. 417 ; Shoecraft v. Bailey, 25 Iowa, 658. If a person puts up his horse at an inn, it makes him a guest ; and the relation ex- tends to all his goods left at an inn, by his taking a room and taking some of his meals at the inn, and lodging there a portion of the time. He need not take all his meals or lodge every night there. McDaniels v. Kobinson, 26 Vt. 316. A traveller who enters an inn as a guest does not cease to be a guest by proposing to remain a given number of days, or by as- certaining the price that will be charged for his entertainment, or by paying in ad- vance, or as his wants are supplied. Pink- erton v. Woodward, 33 Cal. 567. Temporary absence of a guest from the inn does not suspend the innkeeper's lia^ bility. McDonald v. Edgerton, 6 Barb. 560. One who, lodging at another house, merely leaves his horse at the inn, for shel- ter, provender, and care, both parties un- derstanding that he himself does not ask or receive any personal accommodation, is not a guest. Ingalsbee v. Wood, 36 Barb. 452. GUILD. ' This word signifies, prima- rily, tribute; and, secondarily, the fra- ternity or company that is subject to the tribute. It thus came to signify a vol- untary assoeiation or fraternity of per- sons, united for co-operation and mutual protection in carrying on their trade or vocation. Such a company is a body of persons bound together by orders and laws of their own making, the king's license having been first had to the making thereof. A guild of merchants may be incorporated by grant of the sovereign; and such incorporation, with- out more, is sufiicient to establish them as a corporation for ever. Guilds have, however, diminished in prominence and importance, with the advance in the systematic organization of municipal corporations. Guild-hall is the name given to the hall of meeting of a guild. The term was always generically appli- cable to the public place of meeting of the mayor, aldermen, and commonalty of any city and borough, but has been applied par excellence to the place of meeting of the lord-mayor, aldermen, and commonalty of the city of London. HABEAS 548 HABEAS H. HABEAS CORPUS. That you have the body. These were the emphatic ■words of several writs in common-law practice, issued for the purpose of bring- ing a party into court ; even forming a part of the common capias. As usual, these words were adopted as the name of each of such writs; but the term ha- beas corpus is now applied exclusively to designate a few special writs, and, when used alone, without qualification, is always understood as denoting the rem- edy for deliverance from unlawful im- prisonment or detention. This is the writ technically termed habeas corpus ad subjiciendum, — that you have the body to submit to. It is directed to any person who de- tains another in custody, and commands him to produce the body, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the judge or court awarding such writ shall direct. This writ existed at com- mon law, though it has been improved and modified by statute, both in Eng- land and the United States. With respect to this writ as employed by the national judiciary, the power to issue it was at first granted in but a limited way, but has been extended by subsequent acts of congress (see act of Sept. 24, 1789, § 14; act of March 2, 1833, § 7; act of Aug. 29, 1842; act of Feb. 5, 1867, § 1), and is now defined anew in the Revised Statutes, §§751, 752. They give to the courts of the United States, and the justices and judges of those courts within their jurisdictions, the power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. Section 753, however, imposes an im- portant limitation. It provides that " The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the consti- tution, or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or ex- emption claimed under the commission, or order or sanction, of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify." This new enactment of the power seems to set at rest some embarrassing ques- tions of construction attending the former acts. In the employment of the writ in the United States jurisprudence, the cases are to the effect that although the writ is a writ of right, it is not granted as a matter of course, but upon cause shovra; and if, upon the statements of the appli- cation for the writ, the ground relied on is seen to be undoubtedly insufficient, the application may be denied in the first instance. The usual course of proceeding is for the court, on the application of the pris- oner for a writ of habeas corpus, to issue the writ, and, on its return, to hear and dispose of the case ; but where the cause of imprisonment is fully shown by the petition, the court may, without issu- ing the writ, consider and determine whether, upon the facts presented in the petition, the prisoner, if brought before the court, would be discharged. Another restriction which is recog- nized by the supreme court (being, how ever, supported by and fully illustrated in the decisions of England and of the several states upon the subject), in cases where the writ is issued by that court as an act of appellate jurisdiction, is, that the action of the court is restrained by the limits which attach to the na- HABEAS 649 HABEAS ture of appellate power. Where the cause shown for the restraint of the prisoner is a commitment by a judicial tribunal, the court inquires not whether the commitment ought to have been made, but whether it is a legal commit- ment. The proceeding is in the nature of a writ of error, to examine the legal- ity of the commitment. By means of it the body of the prisoner, with the cause of confinement, is brought before the court. The court can, undoubtedly, inquire into the legal sufficiency of that cause. But if it be the judgment of a court of competent jurisdiction, that, in itself, is sufficient cause. Exp. Wat- kins, 3 Pet. 193; see also Matter of Metzger, 5 How. 176 ; Johnson v. United States, 3 McLean, 89 ; Nelson v. Cutter, Id. 326; 1 West. Law J. 357; United States V. Johns, 4 Dall. 412; Exp. Smith, 3 McLean, 121 ; 6 Monthly Law Rep. 57. The distinguishing- incidents of the proceeding, as regulated by further pro- visions of the revised statutes, or estab- lished by the course of decisions, are, when the proceeding is before a United States court or judge, the following: The application of the person restrained of liberty, for a writ of habeas corpus, must be in writing and verified by affi- davit, and must set forth the facts con- cerning the detention of the party apply- ing, in whose custody he or she is de- tained, and by virtue of what claim or authority, if known. It is made the duty of the justice or judge to whom such application is made to forthwith award a writ of habeas coipus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the constitu- tion or laws of the United States. The writ shall be directed to the person in whose custody the party is detained, who shall make return of said writ, and bring the party before the judge who granted the writ, and certify the true cause of the detention of such person within three days thereafter, unless such person be detained beyond the distance of twenty miles; and, if beyond the dis- tance of twenty miles and not above one hundred miles, then within ten days ; and, if beyond the distance of one hundred miles, then within twenty days. Upon the return of the writ of habeas corpus, a day shall be set for the hearing of the cause, not exceeding five days thereaf- ter, unless the party petitioning shall request a longer time. The petitioner may deny any of the material facts set forth in the return, or may allege any fact to show that the detention is in con- travention of the constitution or laws of the United States, which allegations or denials shall be made on oath. The re- turn may be amended by leave of the court or judge before or after the same is filed, as also may all suggestions made against it, that thereby the mate- rial facts may be ascertained. The court or judge shall proceed in a sum- mary way to determine the facts of the case, by hearing testimony and the ar- guments of the parties interested. And provision is made for an appeal from the decision. The writ of habeas corpus ad suhjicienr- dum, or habeas corpus, as it is commonly called, is also a remedy of high impor- tance and frequent employment in the jurisprudence of each of the several states. In that aspect, it is subject to regulation by the state statutes, as to matters of detail. And there are differ- ences in the employment of the writ under the national and under the state governments, arising out of the diifer- ences between the powers of the two forms of government, and the jurisdic- tions of the two systems of courts. Making a proper allowance for these causes of variation, the account above given of the employment of the writ in federal tribunals will serve as a general outline of its features as a remedy under state laws. Other varieties or forms of the writ of habeas corpus are the following : Habeas corpus ad faciendum et recipiendum. That you have the body, to do and receive. A virrit which issues when one sued in some inferior jurisdiction desires to remove the action into a superior court. It commands the judges below to produce the body of de- fendant with the cause of detention, to do and receive what the superior court shall adjudge. It is called a habeas cor- pus cum causa, — that you have the body HABENDUM 560 HABITUAL with the cause, — because it requires the judges below to certify the grounds of holding. Wharton. Hence it is pecu- liarly applicable where one needs a re- view of a record of judicial proceedings, in order to establish his' right to a dis- charge, and may not consider a simple habeas corpus ad subjiciendum, adequate. Habeas corpus ad respondendum. That you have the body for prosecuting. The name of a writ issued to I'emove a prisoner in order to prosecute him in the jurisdiction where the crime was committed. Habeas corpus ad respondendum. That you have the body to answer. A writ issued to bring up a prisoner con- fined by the process of an inferior court, to charge him with a fresh action or criminal prosecution in the court above. Habeas corpus ad satisfaciendum. That you have the body to satisfy. The name of a writ issued to bring up a pris- oner confined by process of an inferior court, to charge him upon execution on a judgment of a superior court. Habeas corpus ad subjiciendum. See supra. Habeas corpus ad testificandum. That you have the body to testify. The name of a writ issued to bring up a pris- oner detained in any jail or prison, to testify in a cause before any court of competent jurisdiction. Habeas corpus cum causa. See supra. HABEAS CORPUS ACT. The English statute of 31 Chas. II. ch. 2, is the original and prominent habeas corpus act, being the one which provided that great remedy for unlawful imprison- ment. It was amended and supple- mented by Stat. 56 Geo. III. ch. 100. There are acts of the same general na- ture and objects, in the various states of the Union. For the United States judi- ciary, the present act is contained in Kev. Stat. tit. xiii. ch. 13. HABENDUM. To have. The ini- tial and most emphatic word in that clause of a deed which follows the grant- ing part of the premises, and defines the extent of the ownership or interest granted. The formal words et tenendum were generally annexed, and the whole phrase is literally translated in the Eng- lish phrase "for having and hold- ing." Holding, as a technical term, relating to ownership, embraces two ideas, — that of actual possession of some subject of prop- erty ; and that of being invested with legal title. It may be applied to any thing which is the subject of property. Hence, in a con- stitutional provision protecting as separate property "the real and personal property of a woman, held at the time of marriage." " held " does not exclude equitable inter- ests. Witsell V. Charleston, 7 6'. C. 88. Habere facias possessionem. That you cause to have possession. The em- phatic words of the usual writ of execu- tion upon a judgment for the plaintifE in ejectment, commanding the sheriff to put the plaintiff in possession of the premises. The phrase is used as a name for the writ, which is also sometimes termed a habere facias, or, by abbrevia- tion, a hab. fa. pass. , or a hab. fa. Habere facias seisinam. That you cause to have seisin. The emphatic words of the writ of execution in real actions, upon judgment for the demand- ant, directing the sheriff to cause the demandant to have seisin of the lands which he has recovered. It was the proper process for giving seisin of a free- hold, as distinguished from a chattel in- terest in lands. The phrase was also used as a name for the writ, often ab- breviated to hab. fa. seis. Habere facias visum. That you cause to have a view. This was the characteristic phrase of a writ directing the sheriff to take a view of lands; as is necessary in some real-property suits. It was also the name of the writ. HABITANCY. It is difficult to give an exact definition of habitancy. In gen- eral terms, one may be designated as an inhabitafit of that place which constitutes the principal seat of his residence, of his business, pursuits, connections, attach- ments, and of his political and municipal relations. The term, therefore, embraces the fact of residence at a place, together with the intent to regard it and make it a home. The act and intent must concur. Lymaa v. Kske, 17 Pick. 231. See Inhabi- taSt. HABITUAL CRIMINALS ACT. In England, a statute, the 32 & 33 Vict, ch. 99, passed in 1869, for the purpose of giving to the police a greater control over convicted criminals who were at large, and providing for the registra- HABITUAL 551 HANAPER tion of criminals. It was repealed, and other proyisions substituted for it, by Stat. 34 & 35 Vict. ch. 112, known as the prevention of crime act, passed in 1871. HABITUAL DRUNKARD. It was said in Commonwealth o. Whitney, 5 Gray, 85, that the terms " drunkard " and "habitual drunkard" mean the same thing; for drunkard alone imports a person whose habit is to get drunk, whose ebriety has become habitual. But the term has long been in statu- tory use in New York, to designate per- sons who have become so confirmed in customary intoxication as renders them proper subjects of legal guardianship analogous to that exercised over insane persons. A proceeding may be taken, formerly, in the court of chancery, since 1846 (when law and equity proceedings were merged) in the supreme court, for the appointment of a committee of a person alleged to have become a "ha- bitual drunkard." The proceeding in- volves an inquest into the character and habits of the person in question, analo- gous to that obtainable in cases of al- leged insanity, and results in the ap- pointment of a committee, charged not only with the care of the estate of the drunkard, but also with the control of his person ; thus the committee, subject to judicial control, may determine his residence. Matter of Lynch, 5 Paige, 120. This proceeding is deemed a pro- ceeding in rem, in the respect that it is public and notorious, and conclusive upon all the world; any persons after- wards dealing with the subject of it being chargeable with notice. Wards- worth V. Sharpsteen, 8 N. Y. 388. The effect of the appointment is to suspend continuously the capacity of the subject to dispose of property, or bind himself by contracts; he cannot, even in sober moments, act in these matters, but his gifts and contracts made after actual finding of an inquisition are void, L'Amoreux v. Crosby, 2 Paige, 422; Wardsworth v. Sharpsteen, 8 iV. Y. 388; but he is not, by force of it, placed in the category of persons of " unsound mind," who cannot make a will, Lewis V. Jones, 50 Barb. 645. To warrant the court in discharging the committee and restoring to the drunkard his estate and civil capacity, there must be proof of permanent reformation; in general, at least one year's voluntary and total ab- stinence from intoxicating liquors must be shown. Matter of Hoag, 7 Paige, 312. And there are special prohibitions of statute upon the sale of liquor to habitual drunkards. HACKNEY-COACH. May include coaches standing for hire in the streets, as well as those kept in stables for hire. Mas- terson v. Short, 33 How. Pr. 481. Hsereditas nunquam ascendet. An inheritance never ascends ; the right to an inheritance does not lineally as- cend. A rule of the feudal law, which applied only to exclude the ancestors in a direct line from inheriting: the inher- itance might ascend indirectly. The rule has been qualified by statute. Haeres legitimus est quein nuptiae demonstrant. The lawful heir is he whom marriage points out as such ; the law regards as a son him only who is bom in wedlock. This maxim is the foundation of the rules governing legiti- macy and inheritance. Bastards are not accepted as heirs. Haeretico comburendo. The name of an English writ, long since obsolete, which lay against a heretic, who, having been convicted of heresy by the bishop, and abjured it, afterwards fell into the same again, or some other, and was there- upon delivered over to the secular power. {Fitz.N.B.m.) By this writ, grantable out of chancery, upon a certificate of such conviction, heretics were burnt ; and so were likewise witches, sorcerers, &c. Jacob. HALF BLOOD. The relationship between persons who ha,ve one parent only in common. See Full blood. HAMESUOKEN. This word, which etymologicaUy is house-breaking, is a Scotch and old English term nearly equivalent to burglary. Briefly, it is invasion of a dwelling coupled with vio- lence to the occupant. The word is differently spelled : hamsecken, hame- secken, haimsucken, &c. HANAPER OFFICE. The hana- per office and the petty-bag office were offices connected with the common-law side of the court of chancery. Accord- ing to several writers, writs, with the returns thereto, were kept in the ham- per, or hanaper, in aU oases in which HANSE 552 HAZARDOUS the question was one affecting the sub- ject only ; while writs with the returns in which the crown had an interest, me- diate or immediate, were kept in the petty-bag, which phrase is accordingly used in contradistinction to the hana- per. See Yates v. People, 6 Johns. 337, 363. Burrill, following Spelman, says that not the writs themselves, but the fees arising upon them, were kept in the hanaper. HANSE. An old word of German origin, signifying an association of mer- chants formed to secure the good usage and safe transportation of merchandise from one town to another. Hanse towns. There were certain cities which received this name during the middle ages, from their having formed a hanse, or confederacy, for mutual protection of their commerce against the pirates which then infested the Baltic. This league or confederacy acquired great power and importance, and at one time embraced seventy or eighty commercial cities. Hanseatic. Pertaining to a hanse; but, generally, the union of the Hanse towns is the one referred to, as in the expression, the Hanseatic league. Laws of the Hanse towns. A code of commercial law established by the cities forming the confederacy above described. HARBOR, V. To conceal, spoken of persons ; to receive a person for the pur- pose of defeating another of a right to the custody of the one sheltered. To harbor often means to secrete. Jones «. Vanzandt, 5 How. 215, 227. Harboring, as used in the act of Feb. 12, 1793, relative to fugitive slaves, meant en- tertaining or sheltering a fugitive, with the purpose of encouraging him in his desertion of his master. Van Metre «. Mitchell, 2 W(dl. Jr. 311, 317. HARBOR, n. An expanse of navi- gable water, so sheltered by surrounding shores as to form a place where ships may lie in safety. Harbor and port are nearly synony- mous ; the first, however, presents more prominently the idea of safety of the vessel ; the last, the idea of delivery and reception of cargo. The term " port " of Boston, or " harbor " of Boston, as used in the Massachusetts acts for the regulation of pilotage, is not satisfied by restricting its meaning and application to the city of Boston, and to vessels entering its docks and lying at its wharves, or in the stream between them and the inner islands of the harbor. It at least includes all those ports which use the several channels leading to the city of Bos- ton itself ; and this embraces the mouths of the various rivers which empty into the har- bor. Martin v. Hilton, 9 Mete. {Mass.) 371. HARD LABOR. In modern crimi- nal law, the punishment of imprisonment is often coupled with hard larbor; the convict is, by authority of statute, sen- tenced to be confined at hard labor in a designated prison for a specified term. The expression is pleonastic rather than significant. The labor imposed is not, in any emphatic sense, hard, nor is the idea to increase the severity of the pun- ishment by hardship in tasks required. Ordinary, continuous industry, at com- mon mechanical trades, is all that is intended or exacted. HAVE. See Habendum. HAWKER. A person who practises carrying merchandise about from place to place, for sale; as opposed to one who sells at an established shop. It is equiv- alent to pedler, which is more used at the present day. It is perhaps not essential to the idea, but is generally understood from the word, that a hawker is to be one who npt only carries goods for sale, but seeks for pur- chasers, either by outcry, which some lexi- cographers conceive as intimated by the derivation of the word, or by attracting notice and attention to them, as goods for sale, by an actual exhibition or exposure of them by placards or labels, or by a conven- tional signal, hke the sound of a horn for the sale of fish. Commonwealth v. Ober, 12 Cush. 495. HAYBOTE. See Boot. HAZARD. An unlawful game at dice ; and those who play at it are called hazard- ors. Jacob. HAZARDOUS. Exposed to or in- volving danger; perilous ; risky. In the law, this word is chiefiy used in connec- tion with contracts of insurance, more particularly of insurance against fire. Thus, insurances on buildings which, from their materials or construction, are more susceptible of ignition than others, or buildings which, though not objec- tionable on that account, are occupied by persons who carry on trades subject to more than ordinary risk of fire, or which contain goods or machinery of a HEAD 553 HEAKSAY chai-acter to create such risk, are called hazardous insurances. When all of these objectionable qualities are attrib- utable to a building, it is a double haz- ardous insurance. The effect in both cases is to increase the amount of the premium required. The word and its compounds, "extra hazardous," "spe- cially hazardous," and " not hazard- ous," are well-understood technical terms in the business of insurance, having distinct meanings. Although what goods are included in each desig- nation may not be so known as to dis- pense with actual proof, the terms them- selves are distinct, and known to be so; so that an insurance upon goods "haz- ardous " does not include goods " extra hazardous " or " specially hazardous ; " •and an insurance on goods " extra haz- ardous" does not include goods "spe- cially hazardous." " Extra hazardous " and " specially hazardous " are not sub- divisions or classifications of goods un- der the more general term " hazardous , ' ' but distinct classes of goods. Pindar v. Continental Ins. Co., 38 N. Y. 364. HEAD. In its sense of chief or prin- cipal, occurs in some technical expres- sions. Head of a family. The exemption laws of several of the states accord ex- emption of certain property to a debtor who is the head of a family ; which fact has called forth some decisions on the meaning of this phrase. See Family; Household. Head of a family, in the New Hampshire exemption law of 1851, applies to a widower having a minor child residing with him and supported by him at his own dwelling- place; and the father's rights as head of the family are not lost by his only child becoming of age, and removing from the homestead, the father remaining as before. Barney v. Leeds, 51 N. H. 253. Under Georgia homestead act of 1868, the wife, having no children of her own, is not the head of a family of the children of her husband by a former marriage. Lathrop V. Soldiers' Loan & Building Assoc, it Ga. 483. An unmarried man, whose indigent mother and sisters live with him, and are supported by him, is the head of a family. Marsh v. Lazenby, 41 Ga. 153; Wade v. Jones, 20 Mo. 76. A bachelor having no persons depend- ent upon him, and none residing with him except servants and employes, is not the head of a family, in the sense of the term as used in the South CaroUna consti- tutional provision with reference to home- stead exemption. Garaty v. Du Bose, 6 S. C. 493; 8. p. Sallee v. Waters, 17 Ala. 482 ; Bachman v. Crawford, 3 Humph. 216. A bachelor furnished the means for housekeeping and living to his brother and sister-in-law, who lived with and kept house for him. Held, that he was not head of the family, within the exemption laws (Laws 1854-55, ch. 61). Whaleu v. Cad- man, 11 Iowa, 266. Head-borough. The title of an offi- cer who, in Saxon times, was chief of the frankpledge tithing or decennary. This office was afterwards, when the petty constableship was created, united with that office. HEALTH. That condition of the human body in which the vital func- tions are well performed. Health lav. People, 13 N. Y. 378, 427, 468. Heretofore, in a recording act providing for recording of mortgages heretofore given, construed to include mortgages which ought to have been recorded under a previous law. Den v. Goldtrap, 1 N. J. L. 272. HERIOT. A species of tribute, orig- inating in Saxon times, rendered from the estate of a tenant, upon his death, to the lord of the manor; afterwards exacted by the lords as matter of right. It seems to have been, at first, the best beast, afterwards the lord's choice of the tenant's personal pi-operty; but lo- cal custom had much to do with deter- mining what the lord might claim. Heriots were divided into heriot service and heriot custom. The former expres- sion denotes such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent ; the latter arise upon no special reservation whatever, but depend solely upon immemorial usage and custom. The heriot of a military tenant was his arms and habil- iments of war, which belonged to the lord, for the purpose of equipping his successor. Heriots from freeholders are rare; but heriots from copyholders re- main to this day, in many manors, a badge of the ancient servility of the tenure. But the right of the lord, in this as in other respects, is controlled by the custom of the manor. In some manors, the best chattel may be exacted (under which term a jewel or piece of plate is included), and which, immedi- ately, on the death of the tenant being ascertained, by the option of the lord, becomes vested in him as his property, and is no charge on the lands, but merely on the goods and chattels of the tenant. Brown; Mozley Sf W. HERITABLE. Capable of being taken by descent. A term chiefly used in Scotch law, where it enters into sev- eral phrases : Heritable bond. A bond for money, joined with a conveyance of laud or her- itage, to be held by a creditor as security for his debt. Heritable jurisdiction. Grants of criminal jurisdiction, anciently be- stowed on great families in Scotland, with a view to the more easy adminis- tration of justice, but abolished by 20 Geo. II. oh. 43. HERMENEUTICS 560 HIGH Heritable rights. All rights to land, or whatever is connected with land, as mills, fishings, tithes, &c. The natural dirision of things is into corporeal and incorporeal, movable and immovable : the first including things cor- poreal and the objects of touch, the latter things incorporeal, as rights of property, succession, &c. In the Scotch law, these distinctions are lost in those of heritable and movable, drawn more from the rights of the heir and executor, than from the nature of the things themselves. In this view, all rights to land, or whatever is con- nected with land, as mills, fishings, titlies, &c., are called heritable. And whatever moves itself or can be moved, and is not united to land, is movable. These general rules are, however, subject to exception and modification. The corresponding dis- tinction, in the law of England, is between real and personal property ; real property answering nearly to the heritable rights in Scotland, and personal propei:ty to the movable rights. Jacob. HERMENEUTICS. JThe art or sci- ence of interpretation. Legal hermen- eutics is an expression which has been employed to designate the rules, as a system, which guide in the interpretation or construction of legal writings. HIGH. This vernacular word occurs in several compounds and titles: High commission court. A court of ecclesiastical j urisdiction, in England, erected and united to the regal power by Stat. 1 Eliz. oh. 1, passed in 1558-59, though it did not attain permanent or- ganization and full powers until many years later. It then consisted of forty- four commissioners, twelve of whom were bishops, twelve were privy council- lors, and the rest might be either cler- gymen or laymen. The object of creat- ing the court was to vindicate the peace of the church, by reforming, ordering, and correcting the ecclesiastical state and persons, and all manner of errors, heresies, schisms, abuses, offences, con- tempts, and enormities ; and it was di- rected and empowered by juiy ot by witnesses, or by other means of trial, to inquire into all offences or misde- meanors against or contrary to the acts of supremacy (1 Eliz. ch. 1), and uni- formity (1 Eliz. ch. 2). The procedure of the court was wholly founded on the canon law, and the ac- cused was subjected to a series of inter- rogatories of an exhaustive and search- ing character, which he was compelled to answer on oath (called the oath ex off,-, cio), without evasion, not being allowed the benefit of the common-law maxim, that no one is bound to criminate him- self. Any three of the commissioners, one of them being a bishop, were em- powered thus to examine suspected per- sons on oath, and to punish the refrac- tory by spiritual censures, fines, or imprisonments, at their discretion. The exercise of these powers by the court was harsh and oppressive, and it incurred odium by abusing its author- ity and exceeding its jurisdiction. It was at length, in 1611, by Stat. 16 Car. I. ch. 11, abolished, at about the same time and for the same general reasons as the court of star chamber. Brown ; Mozley §• W. High constable. See Constable. High court of admiralty. The name of the court in England which formerly had jurisdiction in maritime causes, de- veloped out of the authority of the lord high constable in admiralty matters. Its rules of procedm'e and of decision were largely derived from the civil law ; and its judgments were chiefly in rem, and binding upon all the world as well as the parties in the particular cause. By the supreme court of judicature acts all the jurisdiction of this court is trans- ferred to the high court of justice created by those acts. High court of chancery. The name of the former highest court of equity in England, usually held before the lord chancellor. Although the office of chan- cellor is of great antiquity, and judicial functions of increasing importance seem to have been exercised from an early day by the chancellor, the form of a court exercising a peculiarly equitable jurisdiction was not attained until the ordinance of 22 Edw. III., which di- rected the chancellor to inquire of mat- ters of grace ; after which the ordinary forms of procedure by bill and subpoena were gradually adopted, and the juris- diction and rules of decision in equity established and defined. By the supreme court of judicature acts of 1873 and 1875, the jurisdiction of this court is vested chiefly in the chancery division of the high court of HIGH 561 HIGH justice ; a portion of its powei-s is dis- tributed among the other divisions of that court; and its appellate jurisdiction is transferred to the court of appeal. See Chancery; Courts. High court of justice. The name of one of the divisions of the supreme court of judicature in England. The judges of the court, as first constituted, are the chancellor, the chief justice of England, the master of the rolls, the chief justice of the common pleas, the chief baron of the exchequer, the vice- chancellors, the judge of the court of probate and of the court for divorce and matrimonial causes, the puisne judges of the queen's bench, the puisne judges of the common pleas, the junior barons of the court of exchequer, and the judge of the high court of admiralty. The lord chancellor, and in his absence the lord chief justice of England, is the president of the court. Generally speak- ing, the jui-isdiction, original and appel- late, previously belonging to the courts whose judges have been mentioned, and several inferior tribunals (see Courts), is now vested in the high court of jus- tice. The court is subdivided into the chancery division, queen's bench divi- sion, common pleas division, exchequer division, and probate, admiralty, and divorce division; to each of which divi- sions respectively are assigned such causes as would formerly have been within the jurisdiction of the respec- tive courts from which they derive their names. An appellate jurisdiction, in respect to aU judgments and orders of the high court of justice, or any judge or judges of the court, is vested in the court of appeal, — the other permanent division of the supreme court of judica- ture. High court of parliament. See Parliament. High seas. Crimes committed upon the high seas are especially the subject of definition and punishment by acts of congress; hence the expression high seas has been a subject of discussion in several cases applying particularly to these criminal statutes. The general meaning of the expression is the unen- closed waters of the ocean on the sea- coast, outside of fauces terrce. The VOL. I. ■ ; high seas begin at low-water mark. De Lovio V. Boit, 2 Gall. 398, 428; United States V. Hamilton, 1 Mas. 152. The term is used in its proper and natural sense, and in contradistinction to mere tide-waters flowingin ports, havens, and basins that are landlocked in their posi- tion and subject to territorial jurisdic- tion. United States ii. Grush, 5 Mas. 290, 297; United States v. Wilson, 3 Blatchf. 435 ; United States v. Robinson, 4 Mas. 307; Johnson v. Twenty-one Bales, 2 Paine, 601 ; Van Ness, 5;QAm. Law /. 68; 3 Wheel. Cr. Cas. 433. It does not include a foreign river only half a mile wide, and running into the interior of a country. United States V. Wiltberger, 5 Wheat. 76; but it does include the mouth of a foreign river a mile and a half wide. United States v. Smith, 3 Wash. C'. Ct. 78, note; also Long Island Sound, The Martha Anne, Olc. 18; and it has been held competent, on an indictment for piracy, for a jury to find that a vessel within a marine league of the shore, at anchor in an open roadstead, where vessels only ride under the shelter of the land at a season when the course of the wind is invari- able, is upon the high seas, United States V. Pirates, 5 Wheat. 184, 200. So a vessel which, while in the harbor of a foreign port, is fastened to the shore by cables, and communicates with the land by her boats, and is not within an enclosed dock, or at a pier or wharf, is, within the common acceptance of the term, on the high seas, outside of low-water mark on the coast. United States V. Seagrist, 4 Blatchf. 420. It has been held that the waters of havens where the tide ebbs and flows are not properly the high seas, unless without low-wjitermark. United States v. Ham- ilton^ 1 Mas. 152 ; s. p. The Abby, Id. 360. But an indictment for confining the captain, and for an assault with a dangerous weapon, committed, on the high seas in the outer road offl' St. Do- mingo, in a vessel belonging to citizens of the United States, was held supported by pi-oving those offences to have been done in the inner road, and in port. United States v. Stevens, 4 Wash. 547. The great lakes are not "high seas" within the meaning of act of July 29, HIGHWAY 562 HIGHWAY 1850, punishing the burning of vessels. Miller's Case, 1 Brown Adm. 156. High steward. An expression used — 1. Of the lord high steward, who holds a court appointed, pro hac vice, during the recess of parliament, for the trial of a peer indicted for treason or felony, or for mis- prision of either. 4 Bl. Com. 261, 262 ; 4 Steph. Com. 302-307. 2. Of the lord high steward of the royal household. 4 Bl. Com. 276, 277 ; 4 Steph. Com. 325. 3. Of the lord high steward of the University of Oxford or Cambridge, an officer of the university appointed to pre- side at the trial of any scholar or privileged person of the university, on any indict- ment for treason or felony, of which the vice-chancellor of the university may have claimed and been allowed cognizance. Be- fore the office of the high steward is called into action, he must have been approved by the lord high chancellor of England. 4 Bl. Com. 277, 278 ; 4 Steph. Com. 325-328. High treason. See Treason. High-'water mark. The line reached ('by the waves of the sea at flood tide. See Low-water mark. High-water mark, used of a mill-pond, means the highest point to which the dam will raise the water in the ordinary state of the stream. Brady v. Blackinton, 113 Mass. 238. HIGHWAY. A road free to the pub- lic ; a passage open to all persons. There is a difference in the shade of meaning conveyed by two uses of the word. Sometimes it signifies right of free passage, in the abstract, not im- porting any thing about the character or construction of the way. Thus a river is called a highway; and it has been not unusual for congress, in granting a privi- lege of building a bridge, to declare that it shall be a public highway. Again, it has reference to some system of law authorizing the taking a strip of land, and preparing and devoting it to the use of travellers; in this use, it imports a roadway upon the soil, constructed under the authority of these laws. Highways exist, also, by dedication of the necessary land from private land- owners, by prescription, and by neces- sity. A highway is a public road which all the subjects of the realm have a right to use. The term also, for some purposes at least, applies to ways common to the inhabitants of some parish or district only, as in the case of church-paths. A highway may exist in a place which is not a thorough- fare. Highways exist by prescription, by local act of parliament, or by dedication to the public on the part of individuals. Mialey ^ W. A highway is a public way open to aU the king's subjects, and leading between two public termini. Young v. Cuthbertson, \Macq. H.L.ibb. Highway-means a public road over which all citizens are at liberty to pass and repass, on foot, on horseback, and in carriages and wagons. State v. Johnson, Phill. L. 140. The legislature of New Jersey have habitually used the term highway as sy- nonymous with a lawful public road. Hence the phrase, " the highways within my lim- its and division," as employed by an over- seer of roads in an official paper, may be taken as sufficiently descriptive of a public road, regularly laid out, according to the provisions of the statute. Vantilburgh v. Shann, 24 N. J. L. 740. The term highway, when used in a stat- ute, is restricted to county roads and coun- ty ways. Cleaves ». Jordan, 34 Me. 9. Highway includes town ways. Jones v. Andover, 6 Pick. 59; Commonwealth ». Hubbard, 24 Id. 98. The word highway is a term appUcable to all great roads leading from town to town, to markets, and to public places, and denotes a way that is common to all pas- sengers. But it is also especially used, in our statutes, as applicable to county roads or roads leading from place to place, in dis- tinction from town or private ways, as to which the provisions are difEerent in sev- eral respects. When used in a popular sense, it includes all public travelled ways, whether county or town. Harding v. In- habitants of Medway, 10 Met. 465. A way may be a highway although it lies wholly in one town, and is not con- nected with any county road. Blackstone V. County of Worcester, 108 Mass. 68. A road laid off by commissioners, under an order of a township board of trustees, who appoint an overseer of the same, is a public highway ; and to obstruct it wilfully is a misdemeanor. State v, Davis, 68 N. C. 297. To constitute a highway, the way must be one over which all the people of the state have a common and an equal right to travel, or, at least, a general interest to keep unob- structed. People V. Jackson, 7 Midi. 4.S2. A way, to be a highway, must be so used as to show that the public require it for their accommodation, and that the owner ' of the land has intentionally dedicated it for that purpose. State v. Nudd, 23 N. H. .327. A street in a town is a highway. Con- ner V. President, &c. of New Albany, 1 Blachf. 68; and see Brace v. N. Y. Cen- tral R. R. Co., 27 N. Y. 269; Common Council of Indianapolis v. Croas, 7 Ind. 9 ; State V. Mathis, 21 Id. 277. The streets and alleys of a town are highways. Morris v. Bowers, Wright, 749. A street is a subject of common use, and HIGHWAY 563 HIRE not of exclusive possession ; an incorpo- real hereditament, in wiiich all persons possess an equal right, — the right of pass- ing over it; and is, in its nature, incapa- ble of being reduced into possession. But it is a subject of government ; and the reg- ulation of it is placed in the, hands of the corporation Conner v. President, &c. of New Albany, 1 Black/. 88. A plank-road — unless there be a reser- vation to the contrary in the dedication im- plied in its charter — is a public highway. Craig «. People, 47 III. 487. Highway does not include turnpike. Seneca Eoad Co. v. Auburn & Rochester R. R. Co., 5 HiU, 170. As used in a statute authorizing the im- pounding cattle found astray upon a high- way, the word highway includes a turn- pike. Pickard v. Howe, 12 Met. l98. A railroad is not a highway, in the sense of that word as used in N. C. Rev. Code, ch. 34, § 2, punishing with death robbery in or near a public highway. State v. John- eon, PhUl. L. 140. A navigable river within this state is not a highway, within the provision of Ala. Code, § 3243, against gaming. Glass v. State, 30 Ala. 529. Highway, as used in R. I. Rev. Stat. ch. 176, § 16, making carriers liable for loss of life of , a person crossing upon a highway, includes the crossing of navigable waters, the same being a public highway. Chase V. American Steamboat Co., 10 R. I. 79. To be a public highway, a road must be laid out, and recorded as such, according to law. United States v. King, 1 Cranch C. Ct. 444; United States v. Schwarz, 4 Id. 160; United States w. Emery, Id. 270; State V. Marble, 4 Ired. L. 318. Every way is a liighway which has been used as such for fifty years, and repaired within that time by the town. Reed v. Northfield, 13 Pick. 94. A road of which a survey has been filed and recorded by the highway commission- ers, between 1805 and 1826, is a public highway, notwithstanding irregularity in laying it out. Parker v. Van Houten, 7 Wend. 145. To constitute a highway, it must at least be of public utility, if not of necessity. Witter V. Harvey, 1 McCord, 67. A town-way is not substantially the same thing as a highway, within the meaning of Me. Rev. Stat. 1871, ch. 18, § 39. Water- ford V. Oxford County, 59 Me. 450. In New Hampshire, since the revised statutes, no way is to be deemed a public highway, unless it has been laid out agree- ably to statute, or has been used by the public for at least twenty years. North- umberland V. Atlantic, &c. Railroad, 35 N. H. 574. Highway acts, or laws. The body or system of laws governing the laying out, repair, and use of highways. Highway crossing. This may mean, doubtless, a crossing of two highways. But as special provision is necessary against collisions, wherever a railroad crosses a highway, the term has come to be very frequently used, in railroad laws and cases, to designate a place where a railroad crosses a highway. Highway officers. These are the officers who have charge of the high- ways. In some localities this duty de- volves on officers of more general name and character, as upon supervisors of the comity, or selectmen of the town. In others there is a distinct board, known as highway overseers, or by like name, to whom the making and repair of roads is committed. Highway robbery. In England, from the time of Henry VIII. to Wil- liam and Mary's reign, robbery in or near a highway was a capital ofience; while, if committed elsewhere, the pun- ishment was less severe. The same dis- tinction was formerly made in North Carolina. It is obsolete in England, and has never been of general importance in this country. Highway tax. A tax for and appli- cable to the making and repair of high- ways. Under the highway laws in sev- eral localities the tax-payer has the op- tion of paying it in money, or by his labor on the roads, under direction of the highway officers. Highwayman. When highway rob- bery was a distinct offence, the term highwayman was in use to denote one guilty of robbery on the highway. Hits testibus. These being wit- nesses. Words used at the beginning of the attestation clause in ancient deeds and charters, followed by the names of the witnesses, written by the clerk or scrivener, and after their names the concluding phrase, et aliis ad Jianc rem convocatis, — and others for this pur- pose assembled. HIRE, V. To contract for the use of property or for services. Hire, n. : the name of a species of bailment the subject of which is property furnished for use, or personal services. Also, the compensation agreed upon for the ser- vices; or wages; and sometimes, though rarely, the compensation for the use of a chattel (this is more often called rent). HIRE 564 HIRE Hired is applied to a thing taken for use upon compensation, in distinction from a thing bought or borrowed; or to a person employed to serve for wages; or to services engaged for wages. Hirer : the person who obtains the use of a thing, or employs services for a compen- sation. Hiring: the act or transaction of contracting for personal services, or for the use of property, for a compensa- tion. Locatio (q. v.) is the term of the civil law which stands generally for this spe- cies of bailment; and writers who fol- low the language of the civil law have divided the contract of hiring into loca- tio operis faciendi, or hiring services, and locatio rei, or hiring a thing. The first of these divisions is further subdi- vided ; but the subdivisions do not fully correspond with the wants and uses of modern transactions. The views and modes of statement of the civil law have, however, been wide- ly adopted by writers in English and American jurisprudence, in explaining the relative obligatiohs of the parties to contracts of hire. Hire of things. According to these views, the party who lets a thing to hire comes under an implied obligation to deliver the thing to the hirer; to refrain from every obstruction to the use of it by the hirer during the period of the bailment; to do no act that shall deprive the hirer of the thing; to warrant the title and right of possession to the hirer, in order to enable him to use the thing, or to perform the service; to keep the thing in suitable order and repair for the purposes of the bailment; and, finally, to warrant the thing free from any fault inconsistent with the proper use or enjoyment of it. It is the duty of the person letting to hire, according to the Roman law, to disclose the faults of the thing hired, and practise no art- ful concealment, to charge only a rea- sonable price therefori and to indemnify the hirer for all expenses, which are properly payable by the letter. The rights of the hirer are that he acquires the right of possession only of the thing for the particular period or purpose stip- ulated (but he acquires no property in the thing) ; and that he also acquires the exclusive right to the use of the thing during the time of the bailment. His duties are to put the thing to no other use than that for which it is hired; to use it well; to take care of it; to restore it at the time appointed; to pay the price or hire; and, in general, to ob- serve whatever is prescribed by contract, or by law, or by custom. The contract may be dissolved or extinguished in re- spect to future liabilities ip various ways: 1, By the mere efflux of the time, or the accomplishment of the ob- ject for which the thing is hired ; 2, by the loss or destruction of the thing by any inevitable casualty; 3, by a voluntary dissolution of the contract by the parties; and, 4, by operation of law, as where the hirer becomes proprie- tor by purchase or otherwise of the thing hired. Hire of services. The contracts classed under this head are either contracts for work, contracts for safe-keeping of per- sonal property, or contracts for carriage of persons or property. In contracts for work, it is of the essence of the contract: 1, That there should be work to be done; 2, that it- should be to be done for a price or re- ward; and, 3, that there should be a lawful contract between parties capable and intending to contract. The obli- gations and duties on the part of the employer, as deduced in the foreign law, are principally these: 1, To pay the price or compensation; 2, to pay for all proper, new, and accessorial mate- rials; 3, to do every thing on his part to enable the workman to execute his engagement; 4, to accept the thing when it is finished. If before the work is finished the thing perishes by inter- nal defect, by inevitable accident, or by irresistible force, without any default of the workman, then, 1, if the work is independent of any materials or property of the employer, the manufacturer has the risk, and the unfinished work per- ishes to him; 2, if he is employed in working up the materials, or adding his labor to the property of the employer, the risk is with the owner of the thing, with which the labor is incorporated; 3, if the work has been performed in such a way as would afford a defence to the HOG 665 HOLD employer against a demand for the price, if the accident had not happened (as if it were defectively or improperly done), the same defence will be equally avail- able to him after the loss. The obliga- tions or duties on the part of the work- man or undertaker are thus summed up in the foreign law; to do the work; to do it at the time agreed on; to do it well; to employ the materials furnished by the employer in a proper manner; and, lastly, to exercise a proper degree of care and diligence about the work. In respect to contracts for safe-keep- ing, and for carriage, the tendency of thought and usage in recent times seems to be strongly towards a departure from the civil-law nomenclature and classi- fication, in which these were placed under the head of contracts of hire. In respect to the first class, persons who do not cling strongly to the civil-law language would be more likely to say of merchandise placed in the care of a warehouseman that it was de- posited with him, intrusted to him, or stored, than to call the engagement a hiring. As "deposit" has been prac- tically extended with respect to money intrusted to banks to embrace an engagement, leaving the depositary at liberty to return other money of the same value (see Deposit), so it has been extended to include an engage- ment for safe-keeping for a compensa- tion. The restriction upon the old definition, which limited deposit to a gratuitous engagement to keep and re- turn, is now often ignored; noticeably, for instance, in the corporate name "Safe Deposit Company," widely adopted by companies organized for the safe custody of valuables. Storage and carriage, again, are in more common use than any inflections of hire, to designate a contract for the custody of ordinary merchandise, or for the transportation of either persons or property from place to place. What is now ordinarily understood in the United States by contract of hire, is either a contract for the privilege of using a thing, or for personal services. HOG. May designate the dead as well as the living animal. A contract for the delivery of a certain number of held, in the absence of explanatory evi- dence, to mean dead hogs ; as they were to be paid for at a fixed price per hundred pounds, net. Whitson v. Culbertson, 7 Ind. 195 ; s. p. Alexander r. Dunn, 5 Id. 122. Hog, as used in a statute punishing the shooting any hog, &c., of anotlier person, includes sows. Shubriek o. State, 2 S. C. 21. HOLD. 1. To adjudge, decide, de- cree; as in saying, " if the court should hold that the defendant is liable, then,'' &c. 2. To bind, confine, oblige, or re- strain; as in the expressions, "to hold a person to his contract," "the obligor is held and firmly bound," "persons held to service." 3. To possess in virtue of a lawful title; as in the expression, common in grants, "to have and to hold" (see Habendum) ; or in that applied to notes, "the owner and holder." An expression in a deed, " that I " (the grantor) "hold a life-interest" in the land conveyed, means " reserve " a life-interest, &c. Hurst V. Hurst, 7 W. Va. 289. The term holding, in a statute concern- ing partition of lands, does not require ac- tual occupancy, but is equivalent to owning or having title to tlie lands, &c. Godfrey V. Godfrey, 17 Ind. 6. The term holder, within the rule that, when holder and indorsee ef a note reside in the same place, notice of dishonor must be personally served, includes the bank at which the note is payable, and the notary who may hold the note as agent of the owner for the purpose of making demand and protest. Bowling v. Harrison, 6 How. 248. Upon a power to a corporation to hold property, and the distinction between a power to purchase and a power to hold, see Lasure v. Hillegas, 7 Serg. ^ R. .313 ; Run- yan v. Coster, 14 Pet. 122; Chautauque County Bank v. Risley, 4 Den. 480 ; Bau-d V. Bank of Washington, 11 Serg. Sr R. 411 ; Goundie v. Northampton Water Co , 7 Pa. St. 233 ; Martin v. Branch Bank at Deca^ tur, 15 Ala n. s. 587; Bank of Michigan V. Niles, 1 Doug. 401. Hold over. To hold over, applied to a tenancy, signifies that the tenant re- tains possession of the leased premises after the expiration of his tenancy, and does not surrender them to the landlord. As a tenant is, in general, under ex- press covenant or implied obligation to surrender peaceably, at the end of the term, his holding over is presumably wrongful. In most of the states, the statutes provide a summary proceeding HOLIDAY 566 HOMAGE (5. V.) to obtain possession of demised premises, by which he may, at suit of the landlord, be ousted. To hold over, applied to an ofBce, sig- nifies that one who has been in office, in virtue of a lawful appointment or elec- tion to the end of the term designated by law, continues to exercise its func- tions after the term has expired. This is not always wrongful. In many cases the statute, and in others common-law rules, to prevent an interregnum in an office, authorize a previous incumbent to hold over until a successor has been duly qualified. HOLIDAY ; HOLYDAY. A secu- lar day upon which the usual obliga- tions of labor, attendance upon court, and attention to notices and service in legal proceedings, are, by law, re- mitted. In early times, various days besides Sunday were set apart for religious com- memoration and ceremonies, and were, in the literal sense, called holydays. In modern usage, days have been designated for rest and festivity, from other than religious reasons. Webster advises ap- plying holj/day especially to a day of religious commemoration, holiday to a secular festival. But the two are not always easily distinguishable; and the distinction, if it could be definitely drawn, has not, in the administration of law, any practical importance. The im- portant thing is that the days in question are excepted, by common understanding and without express reservation, from many contracts for labor; the business of courts and public offices is suspended ; presentment of commercial paper and service of legal notices and civil process is disallowed or excused ; and, in general, the law, while it does not require, en- courages the appropriation of the day to rest and festivity. In a sense, Sunday is a holiday; but as the latter word is usually employed, it does not include Sundays ; thus Sun- days and holidays is a common and cor- rect expression. There may be holidays by local cus- tom or the usage of a particular trade or class of persons, as the holidays of schools. To avoid including these, the expression legal holidays is often used for the days prescribed by authority of a general law. Throughout the United States, the sub- ject of holidays is regulated partly by local usage, and also, to a considerable extent, by state statutes. Thus, in New York, the act of 1873, ch. 577, amending act of 1870, ch. 370, directs, in effect, thatthefirstdayof January (New Year's day), the twenty-second day of Febru- ary (Washington's birthday), the thir- tieth day of May (Decoration day), the fourth day of July (Independence day), the twenty-fifth day of December (Christmas day), any general election day, and any day appointed or recom- mended by the governor or president as a day of thanksgiving, or of fasting and prayer, shall, for all purposes connected with presentment, protest, and notice of dishonor of bills, notes, and checks, be treated as Sunday, and as public holi- days. When either of these days falls on Sunday, the Monday following is ob- served as a holiday. The subject is regulated in England by the bank holidays act of 1871, Stat. 34 Vict. ch. 17, and the holidays extension act of .1875, Stat. 38 Vict. ch. 13. , A statute declaring a specified day a legal holiday, imports, ex vi termini, that it shall be dies non juridicus. The act of a clerk in docketing a judgment on that day is void, notwithstanding there are no words in the statute prohibiting it. (88 Wis. 673.) Re Worthington, 14 Bankr. Reg. 388. HOLOGRAPH. An instrument writ- ten by the gjrantor, testator, &c., en- tirely iii his own hand. Spelled also Olograph. HOLY ORDERS. In ecclesiastical law, the orders or dignities of the church. Those within holy orders in the English church are archbishops, bishops, priests, and deacons. The Roman canonists had somewhat differ- ent grades. HOMAGE. A term in the feudal law, designating the ceremony of rever- ence by which a tenant or vassal, upon being invested with feudal lands, pub- licly avowed the tenure upon which he was to hold them. The tenant kneel- ing, being ungirt, uncovered, and hold- ing up his hands both together between those of his lord, who sat before him, he professed that " he did become his man. HOME 567 HOMESTEAD from that day forth, of life and limb and earthly honor;" and then he re- ceived a kiss from his lord. Homage is to be distinguished from fealty, another incident of feudalism, and which consisted in the solemn oath of fidelity made by the vassal to the lord, whereas homage was merely an acknowl- edgment of tenure. If the homage was intended to include fealty, it was called liege homage; but otherwise it was called simple homage. Homage jury. A jury in a court- baron (q. v.), consisting of tenants that do homage to the lord of the fee; they were authorized to inquire and make presentment of defaults and deaths of tenants, admittances, and surrenders, in the lord's court, &o. HOME. Abode ; actual domicile; dweUing-plaoe. See Abode; Domi- cile; Dwell; Eesidence. That the word home, in the poor-laws of Maine, means some actual abode, adopt- ed with intent to remain, and does not em- brace any place considered as home con- structively, see Jefferson v. Washington, 19 Me. 293; Turner v. Buekfleld, 3 Id. 229. One home or dwelling-place does not nec- essarily continue mitil another is acquired- A man may abandon his home, and thei'sby cease to have any. Exeter v. Brighton, 15 Me. 58; Jefferson v. Washington, 19 Id. 293 ; and see Wilmington v. Somerset, 35 Vt. 232. Where a testator directed that no charge should be inade to his children for expenses while they "remained at home," it was held that by "home" was meant that household of which the testator was the head while living, and the government whereof he committed to his wife upon his death. Manning v. WofE, 2 Dev. Sf- B. Eg. 12. HOMESTEAD. In a general sense, designates the land and dwelling appro- priated as a permanent residence of a family; the home-place, or place of a home. Cook v. McChristian, 4 Cat. 23; Ackley v. Chamberlain, 16 Id. 181; Hoitt V. Webb, 36 N. H. 158; Austin v. Stanley, 46 Id. 52; Barney v. Leeds, 51 Id. 253. Independent of the homestead exemp- tion laws, the word has received some judicial interpretation in this country. The word homestead, used in a will of property in Iowa, before the word had acquired a technical meaning in that state, was held to include all the land appurtenant to the farm upon which the testator resided. Hopkins v. Grimes, 14 Iowa, 73. " Homestead," in a will, was held not to include the original dwelling-house, where the testa- tor had built a new dwelling on another part of the land, and had moved into it, and had enclosed the old building as a distinct residence, and leased it. Back- us u. Chapman, 111 Muss. 386. In a conveyance of lands described as the grantor's "homestead farm," it was held that homestead by no means nec- essarily included four parcels of land which the grantor owned, though they lay and were occupied together. Home- stead means nothing more than home- place. What was intended must be de- termined by considering any words of particular description accompanying the general description in the deed. Wood- man V. Lane, 7 N. H. 241. The word has more recently acquired an important technical meaning, under laws of the states allowing a head of a family to designate by public record a house and land as his homestead, and exempting such homestead from execu- tion for general debts. Such exemp- tions are not allowed in all the states. Down to 1875, Connecticut, Delaware, Indiana, Maryland, Oregon, Pennsyl- vania, and Rhode Island, also the Dis- trict of Columbia, appear not to have passed laws of this kind. Throughout the other states this privilege is allowed. If the property is a' farm, the privilege is limited, in about half the states, by number of acres; forty, eighty, or one hundred and sixty is a common limit. In other states, the restriction is by value ; often five thousand dollars or two thousand dollars, or sometimes less. If the property is a town or city lot, the ex- emption is generally limited by a value corresponding to the value allowed for farms, or the quantity is closely restrict- ed, as to a quarter or half an acre. The homestead laws usually give the wife of the proprietor some control over any sale or mortgage of the property. These homestead laws do not usually give any speciiic description of the kind of property which may be exempted. They impose a limit of value; but as to what sort of property is included they HOMESTEAD 568 HOMESTEAD generally use the word homestead, leav- ing its meaning to be determined by the courts. Decisions upon the term, in this statutory connection, are not alto- gether consistent, for the reasons that the statutes themselves differ in policy and language somewhat in the_ different states; and that the courts have been guided, in different jurisdictions, by op- posite principles of construction. Some cases treat the homestead law as an in- novation upon the common law, sub- ject to strict construction; others con- sider it in the light of a remedial law, ■which must be liberally construed. The cases under these homestead laws, however, agree in requiring the premises claimed as a homestead to be occupied for family purposes as a home, by one who is a resident thereon, and makes them the dwelling-place of his family. Washb. Seed P. 352. General defini- tions given have been : homestead means the home-place; the place where the house is ; the house and the adjoin- ing land, where the head of the family dwells; the home farm. Hoitt v. Webb, 36 N. H. 158. A homestead, within the intent of the Arkansas stat- ute, is the place of a house or home; that part of a man's landed property which is about or contiguous to his dwelling-house. Tumlinson ». Swin- ney, 22 Ark. 400. The word, as used in the constitution and statute of Califor- nia, represents the dwelling-house at which the family resides, with the usual and customary appurtenances, in- cluding outbuildings of every kind nec- essary for family use, and land used for the purposes thereof. If situated in the country, it may include a garden or farm; if in a city or town, it may in- clude one or more lots or blocks. It need not be in a compact body or circum- scribed by fences. The only tests are use and value. Gregg v. Bostwick, 33 Cal. 220; Estate of Delaney, 37 Id. 176. With respect to the buildings neces- sary, it is said that > there can be no homestead without a dwelling-house. Coolidge t>. Wells, 20 Mich. 79. There must be a home or residence, whether house, cabin, or tent, to constitute a homestead. Franklin v. Coffee, 18 Tex. 413. With respect to the residence requi- site, it is said that actual residence by the family is necessary to constitute a homestead. Benedict v. Bunnell, 7 Cal. 245; and see Spaulding v. Crane, 46 Vt. 292. A person can have but one home- stead exempt, and that must be his place of actual residence. Tourville v. Pierson, 39 III. 446. The homestead exemption accorded by the laws of Iowa does not attach to property until it is actually occupied and used as a home. A mere intention to occupy, though sub- sequently carried into effect, is not enough. See cases cited 7 U. S. Dig. 89, IT 142. A homestead is a place where a man eats and sleeps, surrounds himself with the insignia of home, and enjoys its immunities and privileges. A house used as a grocery, in the back room of which a man sleeps and keeps his trunk, &c., eating his meals at a tavern, cannot be considered his home- stead. Philleo V. Smalley, 23 Tex. 498. For a single man to occupy a house, by day only, as a law office, does not make it a homestead. Stanley v. Greenwood, 24 Tex. 224. A workshop used for storage of furniture, or a pew in a meeting-house, cannot be deemed a homestead. True v. Morrill, 28 Vt. 672; compare Brettun v. Fox, 100 Mass. 234. And the statutory occupation nec- essary to create a homestead must be personal: it cannot be by a tenant. True V. Morrill, 28 Vt. 672. A house and lot occupied by an unmarried mau as a sleeping-place, without servants or other persons connected with him there residing, and rented by him at the time of levy of execution, is not within the Texas exemption. Wilson v. Cochran, 31 Tex. 677. With respect to adoption and change of occupancy, the homestead is the place of family residence, or the property dedicated as such. The husband, as the head of the family, chooses and estab- lishes it; and, when he has done so, it becomes the wife's homestead, whether she is willing or unwilling. When he sees fit to change it, and dedicates an- other, such new homestead then becomes that of the wife and family also. Hol- liman «. Smith, 39 Tex. 357. Occu- pancy by the husband and family is HOMESTEAD 569 HOMESTEAD presumptive evidence of appropriation as a homestead, and removal is pre- sumptive evidence of abandonment; though this latter presumption will be rebutted by proo'f of a temporary pur- pose in the removal. Harper v. Forbes, 15 Cal. 202; compare Titman v. Moore, 43 III. 169; Matter of Phelan, 16 Wis. 76; Herrick v. Graves, Id. 157; Wood- ward V. Till, 1 Mich. (N. P.) 210; Wig- gins V. Chance, 54 III. 175. A home- stead does not become such until actual residence and occupation by the family as a home ; but, after that character has been impressed, temporary absence, animo revertendi, will not constitute such an abandonment as to forfeit the exemp- tion. Campbell v. Adair, 45 Miss. 170. With respect to the mode of use, some of the decisions have indicated a very liberal rule, that a building need not be occupied exclusively as a residence, to constitute a homestead. Phelps v. Rooney, 9 Wis. 70. Whatever is used, being necessary or convenient as a place of residence for the family, as contra- distinguished from a place of business, constitutes the homestead, within the statutory limit as to value ; and if it is also used as a place of business by the family, it need not therefore cease to be a homestead. Estate of Delaney, 87 Cal. 176. Notwithstanding the fact that a building and grounds are adapted to be used in part as a boarding-house or hotel, yet if they are also promi- nently designed and used for the resi- dence of the owner and his family, they may be protected as a homestead. Ach- ley V. Chamberlain, 16 Cal. 181; see also Taylor v. Hargous, 4 Id. 268; Layell V. Layell, 8 Allen, 575. A homestead may include the whole of a dwelling- house, although a portion of it is occu- pied by a third person paying rent there- for to the owner. Mercier v. Chace, 11 Allen, 194. A homestead exemption, in Illinois, includes the entire lot upon which the debtor resides, whatever else may be there, and for whatever else used, if the value is not too great. Hub- bell V. Canady, 58 III. 425. In Kansas, the whole house occupied by the debtor is exempt, though a portion of it was constructed and is used for a brewery. Re Tertelling, 2 Dill. 339. But, in Wis- consin, it is held that the homestead laws have regard to the purpose for which the property is used. No more of a lot in a city or village can be held as a homestead than is actually occupied for the purpose. Stores and offices rented by the debtor, together with the portion of his lot on which they stand, are not embraced within the exemption. Casselman v. Packard, 16 Wis. 114. A homestead in a town may include sev- eral lots ; and if used, or by reasonable presumption to be used, for the conven- ience of the family, they need not be contiguous. Hancock v. Morgan, 17 Tex. 582; s. p. Reynolds v. Hull, 36 loiea, 394. A tract of land not con- nected with the dwelling may be held as a part of the homestead; but both lots must be habitually and in good faith used as a part of the same home- stead. That they are occupied and used by the same owner is not enough. Rey- nolds V. Hull, 36 Iowa, 394. Where a parcel of land was used to furnish feed to a oow kept at the house of the plain- tiff, it was held a part of the homestead, although about a mile distant from the dwelling; as the house and both pieces of land did not exceed the statutory limit. Buxton v. Dearborn, 46 JV. H. 43. Under Wagn. (Mo.) Stat. 697, § 1, parcels of land comprising a homestead need not be contiguous, if they are used in connection. Perkins v. Quigley, 62 Mo. 498. That, in North Carolina, two tracts of land, although not contiguous, may constitute a homestead, if the ag- gregate value does not exceed the limit allowed, see Martin v. Hughes, 67 N.C. 293 ; Mayho v. Cotton, 69 Id. 289. So in Texas. Williams u. Hall, 33 Tex. 212; Rayland v. Rogers, 34 Id. 617. With respect to whether homestead may include distinct parcels of land, the rule varies in different states. A home- stead should consist of but a single tract. Several adjoining and united pieces may be considered as one tract ; but, to warrant this, they must be con- tiguous, though the titles under which they are held may differ. Randall v. Elder, 12 Kan. 257. The homestead exemption may extend to contiguous land occupied and improved under a verbal contract of purchase made before HOMESTEAD 570 HOMICIDE the debt was incurred, although the title was not completed until afterwards, if such land is improved and used as part of the homestead. Fyffe v. BeerSj 18 Iowa, 4. Two contiguous city lots, one of which contains the residence, and the other is used as appurtenant to it, for drying clothes, as an access to the street, &c. , may be included in one ex- emption. Engelbrecht v. Shade, 47 CcU. 627. In Florida, the shop, store, or mill in which one pursues his usual trade or avocation, if connected with and adjacent to his dwelling, is included within his homestead. But a lumber- man running a saw-miU cannot claim portions of land adjacent to his dwelling which are not auxiliary to his home- stead. Greeley v. Scott, 2 Woods, 657 ; 12 Bankr. Reg. 248. The homestead exempted cannot be deemed to embrace a tract of land distinct from the grounds around the dwelling, although such tract is used to supply the dwelling with nec- essary fuel, and both tracts do not ex- ceed the statutory limit of value. Wal- ters ». People, 18 III. 194; s.p. True v. Morrill, 28 Vt. 672. To warrant regard- ing a lot adjoining the grounds of a dwelling, as part of ' a homestead, the two must be substantially connected. Twenty acres of timber land, situated a mile from the owner's dwelling, cannot be claimed as a part of his homestead. Bunker v. Locke, 15 Wis. 635; 8. p. Kresin v. Mau, 15 Minn. 116. The use of a tract of land two miles and a half from a homestead farm, in connection with that farm,by the owner of both, for pasturing cattle of himself and others, was held not sufficient to exempt it from execution as part of his home- stead. Adams v. Jenkins, 16 Gray, 146. The term does not extend to tenements or lots other than the home-place, which are not occupied personally by the owner and his family; to houses in which they do not dwell, and farms on which they do not live. Nor does it necessarily mean all those parcels of land which may adjoin and be occupied together; for the homestead is the place of the house. Still less can it apply to prop- erty occupied by tenants, and where the owner does not dwell. Hoitt v. Webb, 36 N. H. 158. HOMICIDE. Man-killing; the tak- ing: the life of a human being. Homi- cidal: involving or pertaining to man- killing; as homicidal monomania, an insane impulse to kill. Homicide, as a term, does not import crime: it includes crimes, such, for in- stance, as murder and manslaughter. But a homicide may be innocent, may even be in the performance of a duty. The execution of the sentence of death upon a criminal by the officer of the law is a homicide. The term homicide em- braces all man-killing. Burns v. People, 1 Park. Cr. 182, 186. Homicide is of various kinds, named ac- cording to the relations of the parties, — ■ as regicide, the killing one's king; parri- cide or matricide, the killing a parent ; fratricide or sororicide, the killing a brother or sister; foeticide, the killing an unborn child; infanticide, the killing a child after birth; suicide, the killing one's self. But these distinctions are not important (with some exception as to suicide) in the administration of the criminal law throughout the United States. A division of the subject, which is of great practical importance,is one founded upon the legal character of the act. This distinguishes three kinds: justifi- able, excusable, and felonious. Justifiable homicide embraces those cases in which the killing is committed in the performance of a duty or the ex- ercise of a right. Instances are, where a sheriff executes a criminal in strict con- formity to his sentence ; where a police- man kills a person who resists capture ; or, sometimes, where a private person commits the act in self-defence. Excusable homicide embraces cases of killing in which the party cannot justify the act by virtue of a duty or right, but is excused by the law from any punish- ; ment, in view of his innocence of any ' criminal intents Instances are, where a death is caused by accident or misadven- ture, or through ignorance; also, perhaps, where, though wilfully committed, it is done in obedience to a mere instinct of self-preservation, excited by circum- stances of extraordinary peril, over- whelming and disabling the judgment. And homicides in the exercise of self- HOMOLOGATION 571 HOTCHPOT defence are sometimes placed under this head, in view of any circumstances placing the party slightly in fault for the creation of the necessity, so that he cannot be said strictly to be justifled. Felonious homicide includes murder, manslaughter, and suicide. See those titles. Whether words imputing the commission of homicide, without a distinct implication that it was felonious, are actionable, as im- porting a charge of an ofCence, see Taylor V. Oasey, Minor, 258 ; O'Conner v. O'Conner, 24 Ind. 218; Eckart v. Wilson, 10 Sera. §• R. 44 ; Hays v. Hays, 1 Humph. 402 ; Mont- gomery V. Deeley, 3 Wis. 709. HOMOLOGATION. Coniirmation ; ratification. It is used in civil and Scotch law to denote a judicial sentence confirming some previous proceeding; or an act of a grantor establishing a deed previously made, but, as originally made, not obligatory. Bouvier ; Burrill. Honeste vivere. To live honorably. One of thfe three general precepts adopt- ed by Justinian as the fundamental prin- ciples of the law. HONOR. 1. To honor a bill of ex- change or promissory note, is to accept the bill, or pay the biU or note, accord- ing to its tenor. To accept for honor is a phrase applied to the act of a friend of the drawer of a bill, who, upon the failure of the drawee to accept, inter- venes and accepts it, for the friendly purpose of protecting the credit of the drawer, and not upon any obligation resting upon himself. 2. In old English law, honor, besides its vernacular meaning, signifies a seign- iory of the higher class. Honorable. A title of quality con- ferred, by English usage, upon the younger children of earls, and the chil- dren of viscounts and barons; to persons enjoying trust and honor; and, collec- tively, to the house of commons andth'e East India Company. In American usage, it is bestowed on those who hold, or have held, any of the higher public offices; but is a title of courtesy merely. Honorarium. A gratuitous payment for services rendered. An honorai-y gift, as a matter of gratitude, and not as com- pensation by way of hire. Among the ancient Romans, fees to lawyers were of this nature. So, in England, are fees to lawyers and to physicians. An honora- rium is so much in the nature of a gift, that it cannot be recovered by action. Attorneys, on the other hand, may en- force payment of their costs or contpen.' sation by legal remedies. This distinc- tion does not prevail throughout the United States. An honorarium is a voluntary donation, in consideration of services which admit of no compensation in money; in particular, to advocates at law, deemed to practise for honor or influenoej and not for fees. McDon- ald V, Napier, 14 O'a. 89. HORSE. In construing a statute which defines what animals may be treated as es- trays, particularly specifying horse, mare, colt, mule, &c., it would be unreasonable to suppose that the legislature intended to ex- clude from among animals which might be estrayed what is called a gelding; since these may, as a general rule, be considered the most valuable animal of their kind, and at least as liable to estray from their own- ers. The word horse is used in a quasi generic sense, to include every description of the male, in contradistinction to the female or mare, whether stallion or gelding. Owens B. State, 38 Tex. 555. Upon trial of an indictment which charged the defendant with having stolen a horse, it was proved that he had stolen a gelding. It was held that, as the statute upon which the indictment was founded made a dis- tinction between the terms "horse" and " gelding," the variance was not cured by proof that, in the common understanding of the community, the term horse includes a gelding. Turley v. State, 3 Humph. 323. Horse, in an indictment for larceny, ex- cludes a mare. Taylor v. State, 44 Ga. 263. " Horses " may fairly be construed to in- clude mares, as being a nomen generalissi- mum. State v. Dunnavant, 3 Brev. 9. Mules are included in the terms of a statute giving a remedy against railroad companies for injuries to horses and cattle. Toledo, &c. R. Co. v. Cole, 50 III 184. The exemption of a horse from execu- tion includes not only the subject itself, but every thing absolutely essential to its bene- ficial ,erijoyment, as shoes, saddle, &c. Cobbs V. Coleman, 14 Tex. 594; Dearborn V. Phillips, 21 Id. 449. HOSPITAL. The name of a class of eleemosynary corporations devoted es- pecially to the care and support of the aged, the infirm, or the sick. HOSTAGE. In the law of war, is a person left in the hands of one belliger- ent, as a surety that the other will per- form some engagement or stipulation. HOTCHPOT. A vernacular word for a mixture, some say for a pudding, composed of several ingredients ; other- HOTEL 572 HOUSE wise spelled hodgepodge, hotspot, &c. ; and borrowed by the law to express the cast- ing several portions or shares into a com- mon stock, preliminary to a more equal or just division of the whole. The chief use of the term in the Am- erican cases is in the law of advance- ment ((j. v.), where the shares of several children in the father's estate are ad- justed by charging each child who has received any thing by way of advstnce- ment with the value of the thing ad- vanced (not, however, with interest or profits), and giving him credit for his proper share of the whole estate, reckon- ing these charges as assets. This is as if the chijdren advanced jiad returned their advancements, and the estate, as a whole, had then been divided anew. See U. S. Dig. tit. Advancement. In this use of the term, it. corresponds closely with the coUatio (q. v.) of the civil law. Hotchpot originally means a confused mingling of divers things together, and among the Dutch it signifies flesh cut into pieces, and sodden with herbs or roots ; but, by a metaphor, it is a blending or mixing of lands given in marriage with other lands in fee falling by descent ; as if a man seised of thirty acres of land in fee hath issue only two daughters, and he gives with one of them ten acres in marriage to the man that marries her, and dies seised of the other twenty acres ; now she that is thus married, to gain her share of the rest of the land, must put her part given in marriage into hotchpot, t e. she must refuse to take the sole profits thereof, and cause her land to be mingled with the other, so that an equal division may be made of the whole between her and her sister, as if none had been given to her; and thus for her ten acres she shall have fifteen, otherwise the sister will have the twenty acres of which her father died seised. (Lit. 55; Co. Lit. lib. 3, ch. 12.) There is also a bringing of money into hotchpot, upon the clauses and within the intent of Stat. 22 & 23 Car. II. ch.'lO, for distribution of intestates' estates. Where a certain sum is to be raised, and paid to a daughter for her portion, by a marriage set- tlement, this is decreed to be an advance- ment by the father in his lifetime, within the meaning of the statute, though future and contingent ; and if the daughter would have any further share of her father's per- sonal estate, she must bring this money into hotchpot, and shall not have both the one and the other. (1 Eq. Ahr. 253.) Tomlins. HOTEL. The legal definition of hotel and inn are, in this country, substantially the same. An inn or hotel is a house where all who conduct themselves properly, and who are able and ready to pay for their en- tertainment, are received, if there is accom- modation for them, and who, without any stipulated engagement as to the duration of their stay, or as to the rate of compensa- tion, are, while there, supplied at a reason- able charge with their meals, their lodging, and such services and attention as are necessarily Incident to the use of the house as a temporary home. Cromwell v. Stephens, 3 Abb. Pr. if. s. 26 ; see also act of congress of July 13, 1866, § 9, 14 Stat, at L. 118. Plaintiff occupied a large building of eight stories, each story consisting of lodg- ing-rooms adapted to one person. Above the basement it was used exclusively as a lodging-house. The rooms were let to lodgers at a fixed rate per night. There were no arrangements for boarding or cook- ing for guests, nor was there any bar or restaurant connected with plaintiff's occu- pation of the building. The Croton water was partially supplied throughout the build- ing, but during half of the day did not usually rise above the basement, so that the residue was obtained by a tank for rain- water under the roof. Held, that this struc- ture was not chargeable, as a " hotel," with the Croton water tax. lb. See Inn. HOUSE. 1. In its sense of a habita- tion, the most frequent occasions for^ using it in jurisprudence involve the / two ideas of an edifice or structure, and /' abode or residence of human beings. State I'. Powers, 36 Conn. 77. It gen- erally means an ordinary building for the residence of a family. But the usage of the term is not uniform; the circumstances or the context may import a wider meaning to the word, in partic- ular instances. In other words, house means, presumptively, a dwelling-house; a building divided into floors and apart- ments, with four walls, a roof, and doors and chimneys; but it does not necessarily mean precisely this. Surman V. Darley, 14 Mee. ^ W. 181; Daniel v. Coulsting, 7 Man. §■ G. 122. House, in an indictment at common law, is equivalent to dwelling-house. Thompson V. People, 3 Park. Cr. 208 ; Commonwealth V. Posey, 4 Call, 109. House, in a covenant restricting the owner of lands from building, has been held to mean dwelling-house, and to exclude stable. Schenck v. Campbell, 11 Abb. Pr. 292, 294. House, in a statute punishing whoever shall break into the house of another, should be understood in its ordinary mean- ing of a mansion or dwelling-house. Build- ings connected with a mansion or dwelling may be deemed a part of it. But a smoke- house, storehouse, warehouse, or the like, unconnected with a dwelling, is not within such a statute. Nevills v. State, 7 Coldiv. 82. HOUSE 573 HOUSE House is not synonymous with dwelling- house. While the former is used in a broader and more comprehensive sense than the latter, it has a narrower and more restricted meaning than the word building. State V. Garity, 46 N. H. 61. The word house, as used in an amenda- tory statute defining burglary, was held to include erery structure which has sides, walls, and a roof, regardless of the fact whether it is at the time, or ever has been, inhabited by members of the human family ; upon the ground that the statute was not intended to narrow the previous definition, but to exclude the idea that entry into an unoccupied room or apartment of a dwell- ing-house was not burglary. People v. Stickman, 34 Cal. 242. A building which had never been inhab- ited, but which was constructed as and in- tended for a dwelling-house, but which con- tained straw, boards, and implements of husbandry, was held not a house, an out- house, or a barn, within 9 Geo. IV. ch. 22, § 7. Elsmore v. St. Briavels, 2 Man. %■ R. 514; 8 Barn. ^ C. 461. A building erected not for habitation, but for workmen to take their meals and dry their clothes in, which has four walls, a roof, a door, but no window, but in which a person slept with the knowledge, but with- out the permission, of the owner, is not a house the setting fire to which is felony, within 7 Wm. IV. & 1 Vict. ch. 89, § 3. Eeg. V. England, 1 Car. Sr K. 533 A common jail is a house, within 9 Geo. I. ch. 22. Rex v. Donnevan, 2 W. Bl. 683; 1 Leach, 69; 2 East, 1021; but see Rex v. Connor, 2 Cox Cr. Cos. 65. House, in a statute which forbids keep- ing a disorderly house, should not be re- stricted to mean a dwelling. Criminal statutes constantly use " house " as merely equivalent to " building ; " and in such com- pounds as state-house, court-house, county- house, poor-house, meeting-house, school- house, &o., a term indicating the particular purpose to which some building is applied, is prefixed, for distinction. So in the com- pound " out-house," buildings that are not dwellings, but merely appendages to some dwelling, are included. On the other hand, when a dwelling is meant, " dwelling-house," or " mansion-house," is usually and prop- erly employed. Hence any building kept and occupied as a shelter for disorderly persons and conduct may be a disorderly house. State v. Powers, 36 Conn. 77. A statute punishing keeping houses of ill-fame may be violated by maintaining a flat-boat, kept on a river, and fitted up as an abode of men and women. State v. Mul- len, 35 Iowa, 199. A statute punishing the keeping a house for specified unlawful purposes, may be violated by hiring and keeping one story, or even a single room, of a building for the purpose or in the manner prohibited. Com- monwealth V. BuUman, 118 Mass, 456; Commonwealth v. Hyde, Thach. Cr. Cos. 19. House does not necessarily mean a whole building, within statutes punishing the keeping of disorderly houses. A single room devoted to the carrying on of illegal business by the tenant of the whole house may stamp the entire structure with the character of a disorderly house. State v. Garity, 46 N. H. 61. A church may be included under the term house, in a statute relating to setting houses back from the street. Folkestone «. Woodward, L. R. 15 Eq. 159. A policy on an unfinished house does not cover materials for finishing the house, which are not in the house itself. Ellmaker V. Franklin Fire Ins. Co., 5 Pa. St. 183. House may embrace the land upon which the building is erected. McMillan v. Solo- mon, 42 Ala. 356. In the devise of a house, the word house is synonymous with messuage, and conveys all that comes within the curtilage. Rogers v. Smith, 4 Pa. St. 93. Such a devise of a house has been held to pass the whole lot appertaining, and not merely the ground on which the building was erected. Common Council of City of Richmond v. State, 5 Ind. 334. But whether an enactment exempting houses of worship from taxation includes the land whereon they stand, see Lefevre V. Detroit, 2 lUich. 586; Trinity Church v. Boston, 118 Mass. 164. 2. A body of persons organized for public business or duties ; as in the titles, house of commons, house of dele- gates, house of representatives. In a constitutional provision as to what proportion of a house of the legislature shall constitute a quorum, " house " means the entire number possible, without deduc- tion for vacancies, by death, resignation, or failure to elect. Matter of Executive Com- munication, 12 Fla. 653. The word house, in a constitutional pro- vision requiring a two-thirds vote of either house to the passage of an act, means the members present doing business, there being a quorum, and not a majority of all the members elected. An act passed by two-thirds of tlie members present, there being a quorum, is constitutionally passed. Southworth v. Jackson, &c. R. R. Co., 2 Mich. 287 ; s. p. Frellsen w. Mahan, 21 La. Ann. 79 ; Green v. Weller, 32 Miss. 650. House-bote. See Boot. House of commons. The more pop- ular branch of the English parliament, composed of representatives elected from the commonalty. House of correction, or of refuge. A name bestowed upon a place for the confinement of offenders of inferior grade, or for juvenile delinquents. In former English usage the term signi- fied a species of prison, designed for the HOUSE 674 HOUSE penal confinement, aftef conviction, of pau- pers refusing to work, and other persons falling under the legal description of va- grants. It was not under the sheriff's charge, but was governed by a keeper, wholly independent of the sheriff. Mozley Sf W.; Wharton. The house of correction is chiefly for the punishing of idle and disorderly persons, parents of bastard children, beggars, ser- vants running away, trespassers, rogues, vagabonds, &o. Poor persons refusing to work are to be there whipped, and set to work and labor ; and any person who lives extravagantly, having no visible estate to support him, may be sent to the house of correction, and set at work there, and may be continued there until he gives the jus- tice satisfaction in respect to his living. Tomlins. House of ill-fame. A bawdy-house ; a brothel ; a dwelling allowed by its chief occupant to be used as a resort of persons desiring unlawful sexual inter- course. House of ill-fame is synonymous with bawdy-house or brothel. McAlister v. Clark, 3.3 Com. 91. The phrases " house of ill-fame " and " public house " do not necessarily import a bawdy-house such as is indictable. A plaintiff, in an action of slander founded on the use of them, must aver, by way of in- ducement, facts which show they were used in such sense. Dodge v. Lacey, 2 Ind. 212. House of lords. The upper house of the English parliament. It consists of the lords spiritual and the lords tem- poral. The lords spiritual consist of the archbishops of Canterbury and York; the bishops of London, Durham, and Winchester ; and twenty-one other bish- ops. The lords temporal sit, for the most part, iu virtue of hereditary right; but a certain number of them are elect- ed, under the acts of union with Scot- land and Ireland, to represent the body of the Scottish and Irish nobility, re- spectively. The Scottish representative peers are sixteen in number, and are elected for one parliament only. The Irish representative peers are twenty- eight, and are elected for life. The aggregate number of the lords temporal is indefinite, and may be increased at ■will by the crown. 1 Bl. Com. 155- 158; 2 Sleph. Com. 328-332; May's Pari. Pract. The house of lords anciently exer- cised a certain original jurisdiction in judicial matters; but this, it is said, has not been claimed since the case of Skin- ner ti. The East India Company, in the feigti of Charles II. They have long exercised an appellate jurisdiction with- out question over .the common-law courts, and which has not been "disputed, it is said, as to the courts of equity, since the case of Shirley v. Flagg, about the year 1675. See Brown, Diet., for a sketch of these jurisdictioiis. House of representatives. The name of the more popular branch of the congress of the United States; also, of the similar branch in many of the state legislatures. House-breaking. The offence of breaking and entering the dwelling- house of another with intent to com- mit a felony therein, considered irre- spective of whether the breaking and entering is done by day or night. Com- pare Burglary. Household, n. Iu general, persons dwelling together and composing a f am- 5 ily. Household, adj. : Appropriated to , the use of or pertaining to a family ' keeping house; domestic; as household furniture or servants. Householder; housekeeper: the head of a family keeping house. ^'iAA£Q JTX. Householder means a master or chief of a family; a person having and providing for a household. Woodward v. Murray, 18 Johns. 401 ; Bowne v. Witt, 19 Wead. 476 ; Griffin r. Sutherland, 14 Barh. 486. Householder, as used in 2 Kev. Stat. 367, means the head, master, or person who has the charge of and provides for a family; and does not apply to the subordinate mem- bers or inmates of the household. Bowne V. Witt, 19 Wend. 475. The term includes one who rents a house in whicli he lives and takes boarders, though he has no family. Hutchinsou v. Chamberlin, 11 N. Y. Leg. Obs. 248. One having and providing for a house- hold is a householder ; and he does not lose that character by ceasing housekeeping, and storing his property, if with intent to resume housekeeping in a while. Griffin v. Sutherland, 14 Barb. 456 ; Cantrell v. Con- ner, 51 How. Pr. 45. By the Ky. Rev. Stat., " one work beast" is exempt from execution in the case of a " housekeeper." It has been held that the latter term means housekeeper with a fam- ily, and that a practising physician, to ex- empt his horse from execution, must prove that he is a housekeeper with a family. Gunn V. Gudehus, 15 B. Mon. 447. A widower with two children of tender age, whom he kept in the care of his mother, providing for them, and sending one of them to school from his mother's HOUSE 575 HUE-AND-CKY house, while he himself occupied a single room, about one mile distant, as an office and dwelling, without servants or other family than his children, who were some- times with him at his office, where he lodged and cooked and ate his meals, was held to be a housekeeper within the mean- ing of the Kentucky exemption laws. Sea- ton V. Marshall, 6 Bush, 429. The provision of chapter 227 of the N. Y. act of 1815 — exempting from exe- cution certain articles owned by any per- son being a householder — is to be con- strued as extending to every family, so long as they remain together as such, and this although for the time being they are house- less. This was held where the father, or head of the family, had left the state, leav- ing his wife and children living together, and they were in the act of removing their residence when the levy was made. Wood- ward V. Murray, 18 Johns. 400 ; s. P. de- clared by 2 Rev. Stat. 367, § 22. The fact that a woman keeps a house of ill-fame does not prevent her from being considered a householder within the mean- ing of the exemption law. Bowman v. Quackenboss, 3 Code R, 17. Householder, in a statute requiring jurors to be householders, means something more than occupant of a room or house. It im- plies the idea of a domestic establishment ; of the management of a household. One who is merely tenant and occupant of rooms used as sleeping-apartments is not qualified to be a juror. Aaron v. State, 37 Ala. 106, 113. Servants necessarily employed and re- siding in the family are part of the house- hold, within the meaning of the Alabama statute relative to liability of wife's separ- ate property for price of necessaries for the household; and necessaries purchased for them can be charged upon the wife's statu- tory separate estate. Pippin v. Jones, 52 Ala. 161. One who rents and occupies a portion of a building as a.n office for business pur- poses, has been held a householder, for the purposes- of bail. Somerset Savings Bank V. Huyck, 33 How. Pr. 323. Under English laws as to qualification of bail, it has been held that to make a person a housekeeper he must have actual posses- sion and occupation of the whole house. 1 Chitti/ Bail, 288. A person who occupies every room in the house, under a lease, except one, which is reserved for his landlord, who pays all the taxes, is not a housekeeper. Nor is a person a housekeeper who takes a house which he afterwards underlets to another, whom the landlord refuses to accept as his tenant. 1 Chitty Bail, 502. Housekeeper means a person actually occupying part or the whole of the house, being the party responsible to the landlord for the entire rent, and assessed or liable for parochial rates and king's taxes. 3 Petersd. Abr. 108, note. Household goods, or furniture. The words household goods, in wills, will pass every thing of a permanent nature, i.e. arti- cles of household use which are not con- sumed in their enjoyment, that were used in or purchased, or otherwise acquired, by a testator, for his house ; but goods in the way of his trade will not pass. 1 Roper teg. 253. The words household goods or furniture, as used in a will, may mean the character of the goods or furniture wherever, or in the possession of whomsoever, they may be, or may indicate whatever is connected with the testator's domestic establishment, and employed as articles of use or ornament, although not what is ordinarily known as furniture. Books, wines, paintings, and statues, curiosities, specimens of muierals, may or may not be household goods or fur- niture, according to their connection with the owner's residence, and his own and his family's habitual use of and access to them. Dayton v. TUlou, 1 Robt. 21. The term household, as appUed to furni- ture, in a bequest of household furniture, although not susceptible of strict definition, has acquired a definite meaning, by which that phrase includes every thing contrib- uting to the use or convenience of the householder or tlie ornament of the house, such as plate, linen, china, pictures, &c. It may include a portrait of the testator, painted after the making of the will, and at the time of his death still in possession of the artist, in another city. McMicken v. Directors of McMicken tfniversity, 2 Am. L. Reg. N. s. 489. The words household furniture, in a will, are sufficient to pass all the testator's personal chattels ; such as plate, linen, china, pictures, &c., which contribute either to the use or convenience of the household or the ornament of the house itself; but only what is kept for domestic use, not arti- cles kept in the house for purposes of trade or merchandise. Le Farrant v. Spencer, 1 Ves. 6V. 97 ; Bunn v. Winthrop, 1 Johns. Ch. 329. They do not pass a watch which the tes- tator was accustomed to carry on his per- son, although they might pass a watch kept hung up for use in the house, like a clock. Gooch V. Gooch, 33 Me. 535. A bequest of household furniture ordi- narily Comprises every thing that contrib- utes to the convenience of the householder, or the ornament of the house. Where the testatrix kept a boarding-school, held, that the furniture of the school-room was not included ; but that articles used for the comfort and convenience of the pupils as boarders were embraced by the bequest, equally with those kept by the testator for her personal use. Hooper's Appeal, 60 Pa. 220. HUE-AND-CRY. An old EngUsh phrase, in which, as has been explained, "hue" signifies the complaint of a party injured by a felony, and "cry," HUNDRED 576 HYPOTHECA the pursuit of the felon upon the high- way upon that complaint; for if the party robbed, or any in the company of one robbed or murdered, came to the constable of the next town, and desired him to raise the hue-and-cry, — that is, make the complaint known, and follow in pursuit after the offender, describing, the pai-ty, and showing as near as he can which way he went, — the constable ought forthwith to call upon the parish for aid in seeking the felon, and if he were not found there, then to give the next constable notice, and the next, until the offender were apprehended, or at least pursued unto the seaside. Jacob de- votes a long article to the law regulat- ing this proceeding, indicating that it must have been of considerable im- portance in England. HUNDRED. The name of a civil division of Engljsh counties, in Saxon times. It is one of a series of divisions the introduction of which has been very generally attributed to King Alfred ; who, according to many accounts, constituted each ten families or households into a tithing (q. v.), and each ten tithings into a body called a hundred; establishing also a law of responsibility of the whole body for the acts or defaults of individ- ual members. Other explanations of the name are, however, given; as that a hundred was a territorial division equal to one hundred " hides " (a Saxon measure) of land ; that it was a division estimated to furnish one hundred able- bodied men to the sovereign, in time of war. Hundred court. The name of an English court, similar in most respects to a court-baron {g. ».), but larger and more important, being held for all the inhabitants of a particular hundred, instead of a manor. Under modern laws, its jurisdiction has devolved on the county court, q. v. Hundred gemote. The public meet- ing of the inhabitants of a hundred. See Gemote. In the earliest times, it seems to have had jurisdiction as a court over civil, criminal, and ecclesiastical matters. Hundredor, is used as meaning, 1, An inhabitant of a hundred; 2, a per- son qualified by residence within the hundred where land involved in an ac- tion lay, to serve upon a jury in the cause; 3, the officer who had jurisdic- tion over a hundred, and held the hun- dred court; 4, the bailiff of a hundred. HUSBAND. Etymologically, house bond; the man who, according to Saxon ideas and institutions, held around him the family, for whom he was in law re- sponsible. It now signifies a man who is married; one legally bound in wed- lock to a wife. The terms " husband " and " wife '' are de- scriptive of persons connected together by the marriage tie, and are significant of those mutual rights and obligations which flow from the marriage contract. When an ab- solute divorce is decreed, the relation ceases, and the terms are no longer applicable. Therefore a subsequent marriage by either party is not a marriage by a person having a husband or wife living, within the pur- view of a statute punishing bigamy, al- though such marriage is expressly forbid- den hy the terms of the decree. The offence, in such case, is contempt. People t'. Hovee, 5 Barh. 117. HUSBANDMAN. An agriculturist ; one who makes the raising provisions by cultivation of the soil his business. Farmer has long been popularly used in this sense in the United States, and has lately been somewhat recognized in law ; but originally its meaning was different. See Farm. HUSBANDRY. Agriculture; culti- vation of the soil for food ; farming, in the sense of operating land to raise pro- visions. HUSTINGS COURT. See Coukt OF Hustings. HYPOTHEC. In Scotland, the term hypothec is used to signify the landlord's right, which, independently of any stipula- tion, he has over the crop and stocking of his tenant. It gives a security to the land- lord over the crop of each year for the rent of that year, and over the cattle and stock- ing on the farm for the current year's rent ; which last continues for three months after the last conventional term for the payment of the rent. Bell. The word is also improperly used for a law agent's right over the title-deeds of his employer. This is more properly termed a lien, or right of retention. Mozley ^ IV. HYPOTHECA. The civil-law name for a species of contract ; being a kind of pledge in which the pledgor or debtor retained possession and enjoyment of the thing. It corresponded to the sub- HTPOTHECATIOIir 577 IDEM stance of the modem contract of mort- Hypotheca was a term of the Eoman law, and denoted a pledge or mortgage. As distinguished from the term pignus, in the same law, it denoted a mortgage, whether of lands or of goods, in which the subject in pledge remained in the posses- sion of <^e mortgagor or debtor ; whereas in the pignus the mortgagee or creditor was in the possession. Such an hypotheca might be either express or implied: ex- press, where the parties upon the occasion of a loan entered into express agreement to that effect; or implied, as, e.g., in the case of the stock and utensils of a farmer, which were subject to the landlord's right as a creditor for rent ; whence the Scotch law of hypothec. The word has suggested the term hypo- thecate, as used in the mercantile and mari- time law of England. Thus, under the factor's act, goods are frequently said to be hypothecated; and a captain is said to have a right to hypothecate his vessel for necessary repairs. Brown. Hypothecary action. The name of an action allowed under the civil law for the enforcement of the claims of a creditor by the contract of hypotheca. HYPOTHECATION. Is frequently used in English and American cases, particularly those upon the law of bot- tomry and maritime liens, for the con- tract that a creditor may cause some spe- cific thing, over which, however, he has no corporal control as pledgee, to be sold for the satisfaction of his demand; thus a vessel is said to be hypothe- cated for the demand of one who has' advanced money for supplies. In the common law, there are but few, if any, cases of hypothecation, in the strict sense of the civil law; that is, a pledge without possession by the pledgee. The nearest approaches, perhaps, are cases of bottomry bonds and claims of material- men, and of seamen for wages ; but these are liens and privileges, rather than hypo- thecations. Story Bailm. § 288. HYPOTHEQUE. In French law, is the mortgage of real property in English law, and is a real charge, following the property into whosesoever hands it comes. Such a charge may be either l&foh, or judidaire, or conventionneUe. It is l€gale, as in the case of the charge which the state has over the lands of its accountants, or which a married woman has over those of her husband; it is judidaire, when it is the result of the judgment of a court of jus- tice ; and it is conventimnelle, when it is the result of an agreement (which must be express) of the parties. I. I O TJ. A memorandum of debt, con- sisting of these letters, a sum of money, and the debtor's signature, is termed an I U, those letters representing the words " I owe you." As this contains no direct promise of payment, it is not a promissory note. IBIDEM. In the same place. Used l?y law writers to signify in the same book, in the same division or page of a book, or, sometimes, the same subject; often abbreviated to ibid., ib., and per- haps id. See Idem. Id certum est quod oertum reddi potest. That is certain which can be made certain ; whatever can be re- duced to certainty is sufficiently certain. ^This maxim is particularly applicable to the construction of written instru- ments, an uncertainty in which may be removed by another instrument referred to, or by the happening of a particular 37 contingency, or by evidence explanatory of the intention, or by mere computa- tion. Such an instrument is regarded as sufficiently certain to be acted upon. ID EST. That is. A phrase in com- mon use, to introduce an explanation of a preceding word or clause; usually ab- breviated to i.e. IDEM. The same. Used by lavr writers for purposes of reference, in the same manner as ibidem, q. v. ; often abbreviated to id. In a strict use of the two words, idem may well be con- fined to references to the same book, while ibidem, meaning in the same place, may properly refer to the same page or section of a book. The distinction is not, however, uniformly made, either of the words or their abbreviations being used indifferently, to avoid a repetition of a previous reference. Idem souans. Sounding the same; IDEO 678 IDIOCT having the same sound. A term ap- plied to names having substantially the same sound, though differing in spell- ing. Wrongly spelling a name, if the two names are idem sonantia, does not amount to a fatal variance; and this rule is sometimes called the doctrine of idem sonans. Ideo consideratum est. Therefore it is considered. The initial words of the Latin form of the entry of judgment in an action at law. The phrase is sometimes tran.slated in the modem forms, and is also used as a name for that portion of the record. It is not a conclusive criterion, whether a definitive judgment has been rendered, that the entry employs or omits the usual form of ideo consideratum est. Judgments are final and subject to review by writ of error, as well when entered without as when entered with that clause. Whitaker V. Bramson, 2 Paine, 209. IDES. A designation of certain days of the month, used in the Roman calendar. They were the eight days immediately after the nones. In the months of March, May, July, and October, these eight days begin at tile eighth day of the month, and con- tinue to the fifteenth day ,■ in other months they begin at the sixth day, and last till the thirteenth. But it is observable that only the last day is called ides, the first of these days is the eighth ides, the second day the seventh, the third the sixth, i.e., the eighth, seventh, or sixth day before tlie ides, and so it is of the rest of the days ; wherefore, when we speals of the ides of any montli in general, it is to be t'alcen for the fifteenth or thirteenth of the month mentioned. Jacob, IDIOCY. Natural lack of reason ; a congenital want of mental power. Idiot: one whose mind has never been devel- oped; a natural fool; a person without understanding, from birth. The rules of the early common law, which were founded on but limited ob- servations of the causes and manifesta- tions of mental unsoundness, made only a very general classification of persons of unsound mind, or the non compotes mentis, calling those persons idiots (ac- cording to most of the definitions) who had never enjoyed reason at all; and those lunatics, who, having attained gome natural development of mental power, had afterwards been deprived of it. The progress of our jurispru- dence, following the development of medical knowledge, has been in the direction of relaxing any strict classi- fication of the insane, and discarding any uniform or specific tests as means of determining legal capacity or respon- sibility, and of allowing each case to be determined upon its' own circumstances ; on the proofs which may be adduced as to the mental condition of the individ- ual in relation to his act under consid- eration. See Insanity; Lunatic. Less than the former stress, therefore, is now to be laid upon the term idiocy, as dis- tinctly marking, for all legal purposes, a definite status. The recognition of the fact that there are all degrees and grades of natural incapacity has modi- fied the view that the lack of mind im- plied in the term is absolute, complete, and irremediable. The line of distinc- tion which applies the term to an origi- nal or natural incapacity, rather than to one superinduced after development, is retained. The early decisions profEer definitions of these tei-ms which are not definitions at all, but only tests for determining what persons may be classed as idiots; such as these : one who has not under- standing to tell his age, or who is his father or mother; one who is incapable to learn the alphabet; one who cannot count or number twenty ; presumably one born deaf and dumb; and, a fortiori, one born deaf, dumb, and blind. See Fitzh. Nat. Brev. 233; Id. 583; Hale PI. Cr. 84; Com. Dig. tit. Idiot; 1 Bl. Com. 304; 2 Id. 497; Chitt. Contr. 130; 12 Petersd. Abr. 390; and authorities cited in Brower v. Fisher, 1 Johns. Ch. 441. More accurate views of the sense now attached to idiocy are gained by attend- ing to the explanations of modern writ- ers upon insanity. Esquirol {Treat. Insanity, Am. ed. 1845, 29) defines imbecility or idiocy as including cases in which " the con- formation of the organs has never been such that those who are thus afflicted could reason justly." And he after- wards {Id. 446) says: Idiocy is not a disease, but a condition in which the mental faculties are never manifested, or have never been developed sufficiently to enable the idiot to acquire such an amount of knowledge as persons of his own age, and placed in similar oiroum- IDIOCY 579 IGNORANCE stances with himself, ai'e capable of re- ceiving. Idiocy commences with life, or at that age which precedes the devel- opment of the intellectual and affective faculties ; which are, from the first, what they are doomed to be during the whole period of existence. Every thing , about the idiot betrays an organization imperfect, or arrested in progress of de- velopment. We see no possibility of changing this state. Nothing teaches us how to impart, for a few moments even, to the wretched idiot an increase of reason or intelligence. He never reaches an advanced age; and, on laying open the brain, we almost invariably dis- cover vices of conformation. Dementia and idiocy differ essentially: a man in a state of dementia is deprived of advan- tages which he formerly enjoyed ; he was a rich man, but has become poor; the idiot, on the contrary, has always been in a state of want and misery. Idiots may be classed in two series, — imbeciles and idiots, properly so called. In the first class, the organization is more or less perfect; the sensitive and intel- lectual faculties are somewhat devel- oped; sensations, ideas, and memory, as weU as the affections, inclinations, and even passions, exist, but only in a slight degree; they feel, think, speak, and are capable of acquiring a certain amount ef education. In the second class, the organization is incomplete ; the senses are scarcely developed; and sensibility, attention, and memory are null, or nearly so. Dr. Ray says, in substance (Med. Jur. Insanity, 86), that idiocy is that condi- tion of mind in which the reflective, and all or a part of the affective, powers are either entirely wanting, or are mani- fested to the slightest possible extent. There is considerable variety in the manifestations of this condition. No particular physical trait can be con- sidered as inseparable from idiocy, though after infancy the physical or- ganization never fails to give notice of its presence. The head is almost al- ways too large or too small. The senses are more or less imperfect, if not entirely wanting; the subject is either blind, or incapable of fixing or changing the di- rection of vision ; or else deaf, or not able to listen ; or else mute, or unable to articu- late, &c. The whole physical economy indicates a depraved and defective con- stitution. In reasoning power, many idiots are below the brute ; others mani- fest one or more of the intellectual fac- ulties, always excepting the reflective. Various propensities they often mani- fest in an inordinate degree of vigor and activity. Modern efforts have shown that idiots are not entirely beyond the reach of aU education. Dr. Hammond (Diseases of the Nervous System, 338) distinguishes "idiocy and dementia; the first due to the fact that there are original structural defects in the brain ; the second resulting from the supervention of organic changes in a brain originally of normal power." IGNOMINY, as used In Iowa Rev. § 8989, limiting excuse of witness from an- swering, means public disgrace or dishonor. A plaintiff in an action for seduction need not answer whether, before the alleged seduction, she ever had intercourse with other men than the defendant. Brown v. Kingsley, 38 Iowa, 220. IGNORAMUS. We do not know; we ignore it. This Latin word was formerly written- by the grand jury upon the back of a bill presented them, when they considered the evidence insufficient to sustain an indictment. Now, since proceedings are in English, the words indorsed on the bill in such cases are ''no biU," "no true bill," or "not found;" but the jury are still said to ignore the bill. IGNORANCE. Lack of information ; want of knowledge. The most important division of igno- rance is into ignorance of fact and igno- rance of law. The former, ignorance of matter of fact, qualifies a person's responsibility for, and limits the obliga- tion of acts done under its influence, — if influence can be predicated of a negative state; the latter, ignorance of matter of law, as a general rule, does not. Ignorance is not a state of the mind in the sense in which sanity and insanity are. When the mind is ignorant of a fact, its condition still remains sound ; the power of thinking, of judging, of willing, is just as complete before communication of the fact as after, — the essence or texture, so to speak, of the mind, is not, as in the case of insanity, affected or impaired. Ignorance of a particular fact consists in this, that the IGNORANTIA 580 ILLUSORY mind, although sound and capahle of healthy action, has never acted upon the fact in question, because the suliject has never been brought to the notice of tlie perceptive faculties. Boylan v. Meelser, 28 N. J. L. 274. Ignorantia facti ezcusat ; ignorantia juris non ezcusat. Ignorance of fact excuses; ignorance of the law does not excuse. Ignorance or mistake in respect to a matter of fact may be an excuse or ground of relief to a party from the consequences of his conduct; but igno- rance or .mistake in regard to the law is not an excuse or ground of relief. This maxim expresses one of the rudimen- tary principles of the law, and rests upon the fundamental theory that every man is bound at his peril to know the law, and is therefore conclusively presumed to know it. This idea is expressed in one of the various forms of the maxim, ig- norantia juru, quod quisque tenetur scire, neminem excusat, — ignorance of the law, which every one is bound to know, ex- cuses no one. ILLEGAL. Contrary to law; illicit; unlawful. Illegality: an act or quality of an act contrary to law. Sometimes this term means, merely, that which lacks authority of or support from law; but more frequently it im- ports a violation. Etymologically, the word seems to convey the negative mean- ing only. But in ordinary use it has a severer, stronger signification; the idea of censure or condemnation for breaking law is usually presented. But the law implied in illegal is not necessarily an express statute. Things are called illegal for a violation of common-law principles. And the term does not imply that the act spoken of is immoral or wicked: it implies only a breach of the law. People v. Kelly, 1 Abb. Pr. n. s. 432; Chadboume U.Newcastle, 48 iV^.fl^. 196 ; Palmer v. Concord, Id. 211 ; State V. Hayworth, 3 Sneed, 64. Thus an illegal act is, generally, some- thing done which violates law. An illegal consideration or contract is one which infringes law, so that the contract is void, or the party incurs a penalty. Illegal sales, trade, or traffic are such as are carried on in contravention of pro- hibitions of law, and may be deemed an ■ offence. Illegal trading, or trafBc. These phrases are sometimes used of domestic buying and selling, irrespective of any obligations arising from the existence of war. But they are used in the deci- sions upon the laws of war in a special sense, signifying buying and selling which a subject of a government en- gaged in a war carries on with the enemy or enemy subjects, in violation of his allegiance. This is to be distin- guished from traffic which a subject of a neutral nation carries on in violation of the obligations of neutrality only. ILLEGITIMACY. Bastardy, in its sense of a social condition; the status of a child whose parents were not inter- married at the time of its birth. Illegiti- mate: bastard; bom out of wedlock. The Louisiana code divided illegitimate children into two classes: 1, Those born from two persons who, at the moment when such children were conceived, could have lawfully intermarried; and, 2, those who are born from persons to whose marriage there existed at the time some legal impedi- ment. Both classes, however, could be ac- knowledged and take by devise. Compton V. Prescott, 12 Bob. {La.} 56. ILLICIT. Illegal; unlawful. Illicit trade. In marine insurance, the warranty against illicit trade means trade which is made unlawful by the laws of the country to which the vessel is bound. "It is not," says Parsons, " the same with contraband trade, al- though the words are sometimes used as synonymous. Illicit or prohibited trade is one which cannot be carried on with- out a distinct violation of some positive law of the country where the transaction is to take place." 1 Par.i. Mar. Ins. 614. Compare Illegal trading. ILLICITE. Unlawfully. This was the technical word, corre- sponding with " unlawfully," useid in the Latin forms of indictments. ILLUSORY APPOINTMENT. In case a person, having a power to appoint any real or personal property among a limited class of persons, appointed to any one of them a merely nominal share (as one shilling) of the property subject to the power of appointment, this has been called an illusory appointment. Thus, if a father had power to appoint one thousand pounds among two children, and he appointed a shilling to one and the rest to the other, the appointment would be held illusory and void. This doctrine was abolished by Stat. IMBARGO 581 IMMEDIATE 11 Geo.. IV. & 1 Wm. IV. ch. 46, passed in the year 1830. But the entire exclusion of any object of a power not in terms exclusive was illegal, notwithstanding that act, until the year 1874. Now, by Stat. 37 & 38 Vict, ch. 37, passed in that year, it is provided, that, under a power to appoint among cer- tain persons, appointments may be made excluding one or more of the objects of the power. Mozley ^ W. IMBARGO. An old form of the word embargo, q. v. IMBEZZLE. An old form of the word embezzle, q. v. IMBRAOERY. An old form of the word embracery, q. v. IMBRASING. An old English term for mixing specie with an alloy below the standard of sterling money; " which," says Tomlins, " the king by his preroga- tive may do, jind yet keep it up to the same value as before." Debasing or de- preciating the coin are words now in more Jrequent use for this. IMMATERIAL. Not important; col- lateral or subsidiary; not pertinent or needful to the matter in question. Immaterial averment has been de- fined to be an averment alleging with needless particularity or unnecessary cir- cumstances what is material and neces- sary, a,nd which might properly have been stated more generally, and without such circumstances and particulars ; or, in other words, to be a statement of un- necessary particulars in connection with and as descriptive of what is material. Gould Plead, ch! 3, § 188; Pharr v. Bachelor, 3 Ala. 237, 245. The expression is also used to signify an averment of matter which is unim- portant to the cause of action or defence intended to be set up; an averment which may be omitted without rendering the pleading insufScient. Immaterial issue. An issue joined upon some matter or question the deci- sion of which will not determine the action is called immaterial. IMMEDIATE ; IMMEDIATELY. 1. These words, used in relation to time; signify brevity or shortness of time al- lowed; celerity or quickness of action; that a thing is done promptly or with- out delay. Compare Forthwith. Immediately is of relative signification, and is never employed to designate an ex- act portion of time. McLure v. Colclough, 17 Ala. 89, 100. / %-CCOC^ ^'^^■^ Immediately does not, in legal proceed- ings, necessarily import the exclusion of any interval of time. It is a word of no very definite signification, and is much in subjection to its grammatical connections. Gaddis «. HoweU, 31 N. J. L. 313. It allows such convenient time as is rea- sonably requisite for doing the thing. Bur- gess V. Boetefeur, 7 Man. ^ G. 481. In a stipulation as to time of paying in- stalments of purchase-money, it has been construed as used merely in contradistinc- tion to a credit, and to allow a reasonable time. Sltzlmgh v. Jones, 6 Munf. 83. In a contract to deliver the possession of premises, it does not necessarily mean " as soon as can practicably be done." Streeter V. Streeter, 43 lU. 155. A statute requiring a judge's certificate that an action was really brought for a cer- tain purpose, to be given "immediately" ,/7 2. after the verdict is delivered, does not mean / "^ as soon as ever the verdict is delivered; the judge must necessarily have some little time for reflection. Thompson v. Gibson, 8 Mees. ^ W. 281. Immediate delivery has been held to mean, among coal sMppers and dealers, a delivery within the present, or, in some cases, the succeeding month. Neldon v. Smith, 36 N. J. L. 148. 2. These words sometimes signify nearness of relation; and imply that two persons or subjects are connected di- rectly and without any third one be- tween them. Thus an action is said to be prosecuted for the immediate benefit of a person ; a devise is made to imme- diate issue. An action cannot be said to be prosecut- ed for the "immediate "benefit of a person, unless such person would have a right to the amount recovered, or some portion of it, as soon as it is recovered by the nominal plaintiff. It should at least be a case where he could maintain an action against such nominal plaintiff for money had and re- ceived by him to the witness's use. Every such case may not be within the exception ; but unless the witness's connection with the cause of action will entitle him to bring a suit as soon as the nominal plaintiff has col- lected the money, he is not disqualified by the provision under consideration. Butler V. Patterson, IS N. Y. 292. The word issue, without the qualifying word immediate, would, undoubtedly, in- clude grandchildren and great-grandchildren of the person to vhose issue the bequest ia made. But the qualifying word immediate prefixed to it in a statute forbidding lands tq be given by deed or will to any persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making the deed or will, lim- its the phrase to the children merely of the IMMORAL 582 IMPARLAiTCE person in being, &c. ; while the remoter lineal descendants, if living at the death of the person in being when the will was made, are included in the phrase immediate descendants. Turley v. Turley, 11 Ohio St. 173. IMMORAL. Contraryto good morals; inconsistent with the principles estab- lished by common consent for securing decency, good order, and propriety of conduct throughout the community. Immorality: a practice which violates the ordinary rules of good conduct. IMMUNITY. An exemption from some duty, obligation, penalty, or ser- vice, which is generally imposed or pre- scribed by law. A striking illustration of the use of the word is found in the acts of con- gress regulating the review of decisions of state courts by the supreme court of the United States. Section 25 of the judiciary act of 1789 gave this jurisdic- tion in any case where the decision of the state court is against a title, right, privilege, or exemption specially set up or claimed under the constitution, laws, &c., of the United States. A substitute for this provision was enacted in 1867, declaring the jurisdiction in any case of a decision against a title, right, privi- lege, or immunity, specially set up or claimed, &c., importing that there is a difEerence of some importance between "immunity" and "exemption." We do not find that the difEerence intended has been made the subject of judicial explanation. What is included under the whole phrase, title, right, privilege, or immunity, has been considered in a few decisions of the supreme court; for which see Abb. Nat. Dig. tit. Error. IMPAIR. To diminish, injure, re- lax, weaken. Statutes which confirm contracts which by the existing law were not valid, are not obnoxious to the constitutional prohibition upon state laws impairing contracts. To create a contract and to impair one do not mean the same thing. And the fact that the law is retrospective does not bring it into conflict with this provision of the con- stitution. Satterlee v. Matthewson, 2 Pet. 380; s. p. Watson v. Mercer, 8 Id. 88; but see explanations of Satterlee v. Matthewson in Martindale v. Moore, 3 Black/. 276. Thus, a statute confirming deeds of mar- ried women previously executed, but not so acknowledged as to have been valid, is not repugnant to that provision of the constitu- tion which forbids laws impairing the obli- gation of contracts. The object of such a statute is to confirm contracts; and the objection that it interferes with vested rights does not render it repugnant to the constitution ; and the courts of the United States, therefore, cannot pronounce it void on that ground. Watson v. Mercer, 8 Pet. 88. IMPANEL. In English practice, to impanel signifies the writing and entering into a parchment schedule, by the sheriff, the names of a jnry. Jacob ; Wharton. In American practice, the term is ap- plied not only to the general list of jurors returned by the sherifi, but sometimes also to the list of jurors drawn by the clerk for the trial of a particular cause. Bouvier; BurriU. Impanelling has nothing to do with drawing, selecting; or swearing jurors, but means simply making the list of those who have been selected. Porter v. People, 7 How. Pr. 441. IMPARLANCE. Originally, a par- ley; an opportunity for talking. 1. In early English practice, when an enlarge- ment of defendant's time to pleat was desired, it was asked and granted, upon a theory of giving defendant time to speak with the plaintiff, in hope of com- promising the action. This, doubtless, was at first the real ground of this spe- cies of application. Later, it became the usual fiction upon which extensions of time were obtained. And thus at last imparlance came to signify time given to plead; a designation by the court of a day for defendant to advise and consider what answer he should make to the action; a continuance or postponement. The term was formerly in frequent use; and the older books give considerable space to the topic of the practice in granting imparlances. It seems to have been gradually disused in England, and to have been at length formally abolished by Stat. 2 Wm. IV. ch. 39, and Reg. 81 of Trin. T. 1853, at least in its general sense of a continu- ance. 2. The word has also been used in the sense of stay of execution. Thus sec- tion 2 of act of congi-ess of May 19, 1828, provided that where by the laws of the state defendants are entitled in the state courts to an imparlance of one term, or more, defendants in actions in courts of the United States shall be entitled to an imparlance of one term. In the revision, " stay of execution " was substituted IMPARTIALLY 583 IMPEACH for imparlance in this enactment. Rev. Stat. § 988. IMPARTIALLY. The words "fairly and impartially," ia a statute requiring offi- cers to take an oath to execute their office " faithfully, fairly, and impartially," add something to the force of the word faith- fully, and should not be omitted from the oath. They are a part of the substance of the oath. They mean something more than "faithfully." That word, used of temporal affairs, means diligently, without unnecessary delay. An agent may be very faithful, yet very partial, to his employer. Perry v. Thompson, 16 iV. J. L. 72. Under a statute rec[uiring a public officer to give a bond " for the faithful perform- ance of his duties," a bond given, condi- tioned that he shall well and truly, faith- fully, firmly, and impartially, execute and perform the duties of his office, is not in- valid as varying from the statute. The expressions do not differ in substance. The words "well, truly, firmly, and impar- tially " are simply redundant. Mayor, &c. of Hoboken v. Evans, 31 N. J. L. .342. IMPEACH. To accuse, call to ac- count, find f anlt with, sue. Impeaching : applies to evidence or proceedings upon an accusation or charge of fault, particu- larly one against an officer or witness. Impeachment : an act or proceeding for the purpose of depriving a person of ca- pacity as an officer, or of credibility as a witness. 1. Applied to an officer, these words designate a proceeding involving an ac- cusation, trial, and judgment, for mis- conduct which renders removal from office proper. The proceeding by im- peachment differs from indictment in important respects. It relates more par- ticularly to official misconduct, or of- fences for which the person should no longer hold office; hence the charges which will warrant impeachment are not necessarily the same with those which will sustain an indictment. The accusation in impeachment is preferred, and prosecuted by some branch of the political power, instead of by the grand jury and district attorney. It is tried, in most jurisdictions, before a quasi polit- ical tribunal, instead of in the courts of justice. And it results, if sustained, in a decision the chief element of which is the removal of the officer from his office, though by positive law a sentence of disqualification from any future holding of office may in many cases be added. Thus, in respect to impeachments of officers of the United States, the consti- tution confers upon the house of repre- sentatives the sole power of impeach- ment, and on the senate the sole power to try all impeachments. The general mode of proceedipg has been, that a resolution is first moved in the house of representatives directing appointment of a committee to consider the charges. If, on their report, the house directs an impeachment, a committee is appointed to impeach the party at the bar of the senate; to state that the articles against him will be exhibited in due time and made good before the senate, and to de- mand that the senate take order for the appearance of the party to answer to the impeachment. This having been done, articles are prepared, by committee, un- der the direction of the house, and pre- sented to the senate ; and a committee of managers is appointed (from the house) to conduct the impeachment. The articles having been presented, the senate issues process, summoning the party to appear at a given day before them, to answer to the articles. The process is served by the sergeant-at- arms of the senate, and due return is made thereof under oath. The articles need not be in the strict form of an indictment, but must be drawn with sufficient certainty to enable the officer to make defence, and to avail himself of an acquittal as a bar to a second impeachment. When the return-day arrives, the officer is called to appear and make answer. Great strictness in drawing this is not required. A replication on the part of the house, joining issue, usually follows. Trial is conducted much according to the methods of courts of justice ; but any debate which . arises is usually had in secret session, and the final vote is taken by putting the question. Guilty or not guilty? to each member of the senate a two-thirds vote being necessary to a conviction. ' CusUng, § 2563. 2. Applied to a witness, these words signify introduction of proof, during the trial of a cause, impugning the credibil- ity of a witness who has been called by the adverse party; as by showing that he is generally reputed to be unworthy IMPEDE 584 IMPLY of belief ; that he has previously made statements inconsistent with his present testimony, &c. To impeach, as applied to a person, is to accuse, to blame, to censure him. To im- peach his official report or conduct is to show that it was occasioned by some par- tiality, bias, prejudice, inattention to or unfaithfulness in the discharge of that duty, or that it was based upon such error that the existence of such influences may be justly inferred from the extraordinary character or grossness of that error. Bry- ant V. GUdden, 36 Me. 36, 47. A witness cannot be said to hare been "impeached" because of a mere conflict between his testimony and the testimony of another witness in regard to the same fact. Baker v. Bobinson, 49 ///. 299. Impeachment of waste, signifies liability to be called to account for com- mitting waste; also, a demand or suit for compensation for waste wrongfully committed. IMPEDE. An obstacle — e.j. a pile of rubbish — which renders access to an en- closure inconTenient, impedes the entrance thereto, but does not obstruct it, if suffi- cient room be left to pass in and out. Keeler v. Green, 21 N. J. Eq. 27. IMPERTINENCE. Ii-relevance ; im- materiality. Impertinent: not impor- tant; not material; not relevant; super- fluous. The terms are chiefly used to denote that fault in equity pleading which con- sists in introducing into a bill, answer, &c. , matters which are not useful in pre- senting the cause of action or defence. IMPLEAD. To sue or prosecute in course of law. Impleaded: sued; pros- ecuted. In an action where there are more defendants than one, and one answers separately, his name is sometimes stated thus in the title of his answer or plea: Richard Roe impleaded with John Doe ; signifying that the two are sued to- gether, but one only interposes the plea. IMPLEMENT. Something neces- sary or appropriate to be used in per- forming any description of work or ser- vice, in carrying on a business or trade, in exercising one's vocation. Probably the most important instance of the use of the term in law is in statutes exempting implements of a debtor's trade from execution. A threshing-machine, used by a farmer to thresh the grain of other people, as well as his own, is not within the exemption of " proper tools or implements of a farmer." Meyer v. M-eyer, 23 Iowa, 359. The tools, implements, materials, stock, and fixtures of a paper-niill are not within an exemption of " the tools and implements, materials, stock and fixtures of the debtor, necessary for carrying on his trade or busi- ness," to the amount of $500. Smith v. Gibbs, 6 Gray, 298. Implements, in a penal statute, cannot be deemed to include animals. In the law dictionaries it is thus defined : " Things necessary in any trade or mystery, without which the work cannot be performed ; also, the furniture of a house, as all household goods, implements, &c. And implements of household are tables, presses, cupboards, bedsteads, wainscot, and the like." And it does not appear ever to have been used to denote animals or beings having life. Thus game-cocks are not "implements of gam- ing," and cannot be lawf idly seized on a warrant commanding the seizure of such implements. Coolidge v. Choate, 11 Mete. (Mass.) 79. A horse used by a tanner is not an im- plement of Ids trade exempt from execu- tion. Wallace v. CoUins, 5 Arh 41. IMPLY. In the proper sense, lan- guage is said to imply a meaning which it conveys but does not express. That is said to be implied which would be re- ceived from the reasonable construction and understanding of the terms em- ployed, though it is not directly stated. An implication is an inference drawn from language of something which is not said, but may fairly be considered as meant. If these words were employed strictly in the above-explained sense, when ap- plied to dealings and instruments, they would designate obligations which arise not by the express terms employed, but by inference and construction. An im- plied contract would mean, always, one gathered from language, although not expressed in it. The expression im- plied trust would import that, although the transaction in question did not ex- pressly declare a trust, there was fair ground to presume that there was an intention to create one. " Implied," in all such phrases, would stand opposed to " expressed," upon the one hand, and " constructive " or " im- puted," upon the other; for there is a large class of cases of unexpressed obli- gations which are imposed by the law, not because the language used faii-ly IMPLY 685 IMPORT indicates an intention which, though unexpressed, warrants the obligation on the ground of a presumption that it was designedly assumed, but because, in view of the facts, justice and fair deal- ing require that the party's obligation should be enforced irrespective of any evidence of intent. It would be well if these two classes of obligations were always discriminated by employing " im- plied " to designate those which rest upon an inference from language or a pre- sumption of intent, and " constructive," to distinguish those which are imputed irrespective of probable intention. See CONSTKUCTIVE. But this discrimination is not uni- formly, or even generally, made. The phrase implied contract is applied by legal writers, sometimes indiscrimi- nately, to aU those events which in law are treated as contracts, whether they arise from a presumed mutual consent or not, provided only they be not express contracts. Thus it is used to signify a genuine consensual contract not ex- pressed in words, or signs equivalent to words; and sometimes to signify an event to which, though not a genuine consensual contract, the law annexes most or aU of the incidents of a genuine contract as against any person or per- sons. So " implied request " may mean a request inferrible from the transac- tion, or one imputed, notwithstanding it cannot be inferred. A request is said to be " implied by law " some- times when it has been in fact made, though not in express words; some- times when it has never been made at all, but, by a fiction of law, is sup- posed or imagined to have been made. So implied trusts have been distrib- uted into two classes: those depending upon the presumed intent of the parties, as where property is delivered by one to another to be handed over to a third per- son, the receiver holds it upon an im- plied trust in favor of such thii-d per- son; and those not depending upon such intention, but arising by operation of law, in cases of fraud, or notice of an adverse equity. See Express. Implied malice. Malice which has no existence in fact, but which the law im- putes to the guilty party. This implicar tion of malice was invented for the pur^ pose of bringing cases of constructive mur- der, so called, within the legal definition of the crime. It was supposed that malice meant, in all cases, ill-will, and hence that the words malice aforethought, used in in- dictments for murder, imputed a charge of premeditated design to kill. This was not required to be proved in cases of construc- tive murder, the law imputing malice. Darry V. People, 10 N. Y. 120, 138. IMPORT. Used in relation to mer- chandise, signifies to bring it into one jm-isdiction from another. Importa- tion: the act or business of bringing foreign goods into the country as a mer- cantile adventure. The plural forms, "imports" and "importations," are used of the goods or merchandise brought in. The laws of the United States, in relation to commerce and revenue, use the term " to import" in its commercial sense, — which is, to bring from a foreign jurisdiction into this jurisdictiou merchandise not the prod- uct of this country. Goods shipped from one port of the United States to another are not to be deemed imported by reason of an intermediate stoppage at a foreign port. United States v. The Forrester, 1 Newb. 81, 94. To constitute an importation, so as to create a right to duties within the revenue laws of the United States, it is necessary that there should be not merely an arrival within the limits of the United States, and of a collection district, but an arrival within some port of entry. United States v. Vowell, 5 Cranch, 368; Arnold u. United States, 9 Id. 104 ; Meredith v. United States, 13 Pet. 486, 494. To constitute an importation, there must be a voluntary arrival within some port of the United States, with the intent to unlade the cargo. An involuntary arrival, by stress of weather, does not constitute an importation. The Mary, 1 Gall. 206. It is not an importation withm the rev- enue laws if the vessel enters a port and then goes to sea without landing her cargo. Kohne v. Insurance Co. of North America, 1 Wash. C. Ct. 158. The term " imports,'' as used in the clause of the constitution, that no state shall lay any imposts on imports, &c., does not in- clude goods which were brought within the port of entry, sold by the consignee to the purchaser, passed through the custom- house at the expense and under the man- agement of the consignee, and are held by the purchaser for sale still in the original packages. Warring v. Mayor, 8 Wall. 110. The term signifies articles imported from foreign countries into the United States, and does not include goods brought from one state into another. Woodruff v. Par- ham, 8 Wall. 12:3. The term can cover notliiug which is not IMPOST 586 IMPROPRIATION actually brought into our limits; that is, the whole amount which is entered at the custom-house, and all which goes into the consumption of the country. Marriott v. Brune, 9 How. 619, 632. Although " imports," in the constitution, means articles imported, yet the exemp- tion from taxation continues only until the first wholesale disposition of them. After such disposition, or after the packages are broken up and the goods appropriated to private use or ofEered for sale at retail, or in any peculiar manner, they cease to be " imports " or " articles imported," within the meaning of the constitution. Wynne V. Wright, 1 Dev. %■ B. L. 19. Imports does not include persons. A state law requiring a payment of head- money from masters of vessels bringing immigrant passengers, is not a violation of the constitutional provision that no state shall lay any imposts or duties on imports, &c. Norris v. City of Boston, 4 Mel. 282, 296. IMPOST; IMPOSITION. A duty or tax ; ^n obligation to pay money laid upon various descriptions of property, for public uses and purposes. Impost is a tax received by the prince for such merchandises as are brought into any haven within his dominions from for- eign nations. It may in some sort be dis- tinguished from customs, because customs are rather that profit the prince maketh of wares shipped out ; yet they are frequently confounded. Vowel. Impost means a duty on imported goods and merchandise. In a larger sense, any tax or imposition. {Story Const. § 474.) It is synonymous with duty. (1 Story Const. 669, note.) It comprehends every species of tax or contribution not included under the ordi- nary 'terms " taxes and excises." Pacific Ins. Co. V. Soule, 7 Wall. 433. An impost, tax, or duty is an exaction to fill the public coflEers, for the payment of the debts and the promotion of the general welfare of the country. An assessment to defray the expense of constructing bridges or causeways, or removing obstructions in a watercourse, to be paid by those only who are benefited thereby, is neither an impost, tax, or duty. Worsley v. New Orleans, 9 Bob. (La.) 324. Impotentia ezcusat legem. Ina- bility excuses performance of a legal requirement. Where a person, without default of his own, is disabled from per- forming an act required by law, and has no remeay over, the law will, in general, excuse him. The maxim is expressed in another form in the phrase, lex non cogit ad impossibilia, signifying that what a man cannot possibly per- form, the law wiU not compel him to perform. This principle operates in various ways, according to the accidents and changing circumstances of life; as where a lessee covenants to leave a wood in as good a plight as the wood was at the time of the lease, and afterwards the trees are blown down by a tempest, the law will excuse the lessee from perform- ance of the covenant. Shelley's Case, I Coke, 93 a. But where the impossi- bility of the performance is due to the default of the party engaging to do an act, the above maxim does not apply. IMPOUND. Is applied to things, to signify that they are placed in custody of the law; analogous to imprison, in the case of persons. Animals estray are impounded; that is, confined in an enclosure called a pound. An instru- ment discovered in the course of a trial to be forged is sometimes ordered to be impounded; that is, retained in custody, with a view to a prosecution of the forger. IMPRIMATUR. Let it be printed. The emphatic word in the Latin form of the license formerly required in Eng- land for the printing of a book; from which the license was termed the impri- matur. IMPRIMIS. First; in the first place. A word formerly in common use to denote the first clause in an instru- ment, particularly in wills. Item was used to introduce each subsequent clause. That the use of imprimis does not, how- ever, import a precedence of the bequest to which it is prefixed over others, see Everett v. Carr, 59 Me. 325. IMPRISONMENT. The detention of another against his will, depriving him of the power of locomotion. United States V. Benner, Baldw. 234, 239. Any forcible detention of a man's per- son, or control over his movements, is im- prisonment. Lawson v. Bazines, 3 Ilarr. {Del.) 416. It extends not only to confinement in a jail, but to a house, stocks, or holding a man in the street, &c. ; for in aU these cases the party so restrained is said to be a pris- oner, so long as he has not his liberty freely to go about his business, as at other times. Co. Litt. 253. A person charged in execution is deemed a person imprisoned, notwithstanding he is allowed the liberty of the jail limits. Co- man V. Storm, 26 How. Pr. 84. IMPROPRIATION. Before the ref- ormation, numerous advowsons and bene- fices were attached to religious houses, who IMPROVED 587 m applied but a small part of the incomes to the officiating priests, and appropriated the rest to their own fraternity. The appro- priators were, therefore, in the first instance, persons spiritual. These appropriations were, it seems, spokep of as impropriations. But the word impropriation is restricted by Sir Henry Spelman and subsequent writers, so as to denote the appropriation by lay- men of these properties, on receiving grants of the same from the crown after the disso- lution of the monasteries ; and the laymen so appropriating them were called lay im- propriators. Mozlev ^ W. IMPROVED. Spoken of lands, may mean " occupied " or " held." It is not a technical word having a precise Irfgal mean- ing. Bond V. Fay, 8 Allen, 213. Improved land is such as has been re- claimed, is used for the purpose of hus- bandry, and is cultivated as such, whether tile appropriation is for tillage, meadow, or pasture. Improve is synonymous with cul- tivate. Clark V. Phelps, 4 Cow. 190. The term improved land, as used in the Pa. road laws and rules of court, includes the ground appropriated for a railroad. Eoad in Lancaster City, 68 Pa. St. .396. IMPROVEMENT. 1. In reference to real property, improvement; is much used — generally in the plm-al form, im- provements — to signify work done or things built or placed upon land, ren- dering more fit for use, and more capa- ble of producing an income. Thus it is said that in some cases one who is dis- possessed of lands under a paramount title may claim compensation for his improvements, made in good faith. Iihprovement, in a mechanic's lien law, may mean repairs or additions to buildings. I may make improvements to my house by painting it or by adding another story to it. The term also implies erections, as fences, houses, bams, &c. It is a very common expression to say of one who is building on his land, that he is making improvements thereon. Getchell v. Allen, 34 Iowa, 559 ; 8. p. Schenley's Appeal, 70 Pa. St. 98. Improvements, in a lease, embraces every addition, alteration, erection, or annexa- tion made by the lessees during the demised term, for their own profit or use. It is more compreliensive than " fixtures," and neces- sarily includes it. French v. Mayor, &c. of N. Y., 16 How. Pr. 220. Improvements, in a contract for the sale, among other things, of the improvements on a certain piece of land, was held, in the absence of any thing in the agreement or the evidence, to show that something else was intended, to mean work and labor gen- erally of the owner enhancing the value of the premises. Spencer v. Tobey, 22 Barb. 260. Improvements, in the Pennsylvania me- chanic's lien law of 1858, covers only use- ful and important erections constituting part of the works placed there by the ten- ant. Schmidt v. Armstrong, 72 Pa. St. 355. A devise to a wife in lieu of dower of the use and improvement of one-third of testator's real property, with personalty, should be construed as passing a life-estate only, not a fee. These words are not, ordinarily, selected to convey a permanent interest in land, nor is such their natural import or meaning. Fay v. Fay, 1 Cush. 93. Improvement, in a statute regulating damages for property taken for roads, &c., which contaioed a provision that the jury should not take into consideration any ad- vantage that may result to the land-owner on account of the improvement for which it was taken, was held to relate to work done, the road itself when constructed, as well as, to its uses and purposes ; to cover benefits accruing on account of the road it- self, as well as on account of its uses. Frederick v. Shane, 32 Iowa, 254. 2. In patent law, an improvement is generally used to present an invention as being auxiliary or collateral to an- other. A machine substantially new, having been invented and patented by one person, an addition to or beneficial modification of it, made by another per- son, is often called and pateated as an improvement. But the use of the word in this connection is not exact or uni- form. IMPROVIDENCE. As used in a stat- ute excluding one found incompetent to execute the duties of an administrator by reason of improvidence, means that want of care and foresight in the management of property which would be likely to render the estate and effects of the intestate un- safe, and liable to be lost or diminished in value, in case the administration should be committed to the improvident person. Coope V. Lowerre, 1 Barb. Ch. 45. It refers to such habits of mind and con- duct as render a man generally, and under all ordinary circumstances, unfit for the trust or employment of an executor. Emer- son V. Bowers, 14 N. Y. 449, 454. IMPUNITIVE. A verdict for " $100 impunitive damages," declared unintelligi- ble. DiUon V. Bogers, 36 Tex. 152. IN. In; into; upon; against. A Latin preposition, used in many phrases and maxims, among which are the fol- lowing: In adversum. Against an adverse, resisting, or unwilling party. A term applied to proceedings contested by the opposite party; such as the entry of a judgment in adver.sum, as distinguished from a judgment entered by consent. In sequali jure, melior est conditio m 588 m possidentis. In cases of equal right, the condition of the party in possession is the better. Where the rights of ad- verse parties are equal, the claim of him ■who is in actual possession of the sub- ject-matter shall prevail. This is a maxim of equity jurispru- dence, and the sphere of its application is in those cases where a plaintiff seeks the interposition of a court of equity to establish his claims to property, against defendant, but, on consideration, it ap- pears that defendant has an equally good equitable right with plaintifE. In such cases the court wiU not disturb defend- ant's possession. Thus the equities are esteemed equal between persons who have been equally innocent and intelligent. It is upon this ground that equity con- stantly refuses to interfere against a bona fide purchaser of the legal title, for value and without notice ; or against one who originally bought an equitable title only, without notice, but who, after being charged with notice, bought the legal estate to protect his equity. Story Eg. Jur. §'64. Other maxims must be considered, also, in determining how the one under con- sideration will be applied ; thus, if com- plainant and defendant have equal equities, the one who acquired title earlier may prevail; for he who is first in time is first in right. On the other hand, if one has also a legal title, he may prevail, notwithstanding the other's pos- session; for, when equities are equal, equity follows the law. In arcta et salva custodia. In close and safe custody. In articulo mortis. In the article of death; at the point of death. In auter droit. In another's right; as representing another. A better form is en auter droit. In banco. In bank; in the bench. A term applied to proceedings in the court in bank, as distinguished from proceed- ings at nisi prius. Also, in the English court of common bench. In capita. Among heads. Accord- ing to the number of individuals, or to the polls. In capite. In chief. A tenant hold- ing directly from the crown was termed, in old English law, a tenant in capite. In commendam. 1. In English law, a living in commendam is a vacant living, commended to the care of some one. 2. In Louisiana civil law, a partner- ship in commendam is,a species of limited partnership. In criminalibus sufficit generalia malitia intentionis cum facto paris gradus. In criminal cases, general malice of intention is sufficient, with an act of equal degree. To constitute a crime, a general crinunal intent, united with a particular criminal act, is suffi- cient, alttiough malice directed against the victim of the crime may be wanting. By fundamental principles of criminal law, a criminal intent and an unlaw- ful act must both exist to warrant punishment. Cases have arisen in which both did exist, but were in- dependent of each other; i.e., the intent was not to do the act precisely as performed. This maxim teaches that they need not correspond with exactness. Thus, in Reg. v. Smith, 33 Eng. Law §• E. 567, Smith seeing T, but supposing he was M, whom he designed to murder, ,shot at and wounded T. A conviction for wounding T with intent to kill was sustained. So it has been held (inde- pendent of any statute such as have been passed in recent years, declaring the possession of counterfeit money an of- fence) that acts, however slight, of ob- taining counterfeit money, counterfeit- ing implements, burglars' tools, &c. , with intent to pass the money or use the- tools in counterfeiting or burglary, may be considered as constituting an offence; although here the criminal intent is in- dependent of the criminal act. Russ. Crimes, 48. In cujus rei testimonium. In testi- mony whereof. The initial words of the concluding clause of ancient deeds in Latin, literally translated in the English forms. In disjunctivis, sufficit alteram par- tem esse veram. In disjunctives, it suffices that either part is true. Where a condition is in the disjunctive, per- formance of either alternative is suffi- cient. In esse. In being; in existence. An event which may happen is said to be in posse; but when it has happened, it is IN 589 m in esse. So a child only contemplated as pei-haps one day to come into being is spoken of as merely in posse ; but after birth, and, for some purposes after it is conceived, it is considered as in esse. An unborn child, if subsequently born alive, and capable of living, ia considered as in esse from the time of conception, where, so considering it is for the benefit of the child, as for the purpose of enabling it to take a devise or legacy. Hone v. Van Schaick, 3 Barb. Ch. 488. In extremis. In the last (moments) ; at the point of death. In facie ecclesiae. In the face of the church. In favorem libertatis. In favor of liberty. In favorem vitse. In favor of life. Liberal presumptions are in- dulged in aid of a defence against a capital charge, or of a claim to free- dom. In fictione juris semper sequitaa ezistit. In a fiction of law there is always equity ; a legal fiction is always consistent with equity. A fiction of law is a legal assumption that a thing is true which is either not true, or which is as probably false as true; the rule on this subject being that the court will not endure that a mere form or fiction of law, introduced for the sake of justice, should work a wrong contrary to the real truth and substance of the thing. Johnson v. Smith, 2 Burr. 962. While a fiction of law cannot be contradicted so as to defeat the end for which it was invented, for every other purpose it may be. Its proper operation is to prevent a mischief, or remedy an inconvenience which might result from applying some general rule of law. The maxim is sometimes written in Jictione Juris sub- sistit mquitas. In fieri. In being done; in process of completion. Proceedings in a suit are said to be in fieri, until judgment is entered. In forma pauperis. In the manner of a pauper. Describes permission giv- en to a poor person to sue without lia- bility for costs. In foro conacientisB. In the tribu- nal of conscience ; conscientiously; con- sidered from a moral rather than a legal point of view. In fraudem legls. In fraud of the law. With the intention of evading the law. Infuturo. In the future; at a future time ; the opposite of in presenti. In gremio legls. In the breast of the law. A figurative expression, im- porting that the subject to which it is applied is in suspense. In hac parte. On this side. In hsec verba. In these words. In initio. In the beginning; from the beginning. In integrum. To the unbroken state; the uninjured condition. In invitum. Against an unwilling party. A term applied to proceedings against an adverse party, to which he does not consent. Proceedings to take land in right of eminent domain are an instance. In itinere. On a journey; on the way; in eyre; upon circuit. A term applied to justices in England going on circuits throughout the kingdom to try causes; and also to proceedings before such justices. In judicio. In a judicial proceed- ing; in court. Injure. Inlaw; in right; according to right; rightfully. In jure, non remota causa, sed proxima, speotatur. In law, not the remote, but the proximate cause is con- sidered. The law regards the immedi- ate, not the remote causes of an event; otherwise it would be drawn into the consideration of .the causes of causes to an indefinite extent. The ordinary ease where slanderous words are repeated, or a libel is repub- lished, and the first promulgator is not held liable for any special damages caused by the repetition ; also the case where a manager of a theatre sued de- fendant for a libel on an opera singer, who was under an engagement with plaintiff to sing at his theatre, but was deterred by the libel, whereby plaintifE lost the profits of her services, and the damage was held too remote, are cited as examples of the application of the max- im. Whart. Max. It is applicable to cases arising out of marine insurance, where negligence for IN 590 IN losses may be referred in some instances to a variety or combination of causes. But the courts will look only to that from which the loss immediately fol- lowed. Thus, where a ship was delayed by the perils of the sea from pursuing her voyage, and the master was com- pelled to put into port for repairs, but, having no other means of raising money, sold part of the goods and applied ttie proceeds in payment of the expenses, the court held that the underwriter was not answerable for this loss; for the damage was to be considered according to the above rule, as not arising imme- diately from, although in a remote sense it might be said to have been brought about by, a peril of the sea. Powell v. Gudgeon, 5 Mau. §• S. 431; Broom Max. The rule also includes those cases where an injury is sustained as the natural and necessary consequence of the original act done, but where in- termediate causes have also contributed to the injury. In limine. Upon the threshold; at the beginning; preliminarily. In loco parentis. In the place of a parent; instead of a parent; having a parent's rights, duties, and responsibil- ities. In misericordia. In mercy; subject to amercement; liable to a penalty in the discretion of the king, lord, or judge. Sometimes contracted to in m'ia. In mitiori sensu. In the milder sense; in the most favorable accepta- tion. This phrase was formerly much used in expressing the rule of construc- tion prevailing in regard to defamatory words, that they should be construed in mitiori sensu. The rule itself having been abandoned, and defamatory words being now construed according to their usual meaning and acceptation, this phrase is falling into disuse. In mora. In delay; in default. A term of the civil law, in common use in Louisiana. In mortua manu. In a dead hand; in mortmain. A term applied to* prop- erty held by religious societies, regarded as dead in law, as ecclesiastics were civi- liter mortuus. In nubibus. In the clouds ; in abey- ance; in suspension; in the custody of the law. In cases where property is in abeyance, the inheritance is figuratively said to be in nubibus, or in gremio legis. In nuUo est erratum. In nothing is there error. The emphatic words of the Latin form of joinder in error, by which the defendant alleges that there is no error. The words are also used as the name of the pleading. In pari causa. In an equal cause. In a cause where the parties on each side have equal rights. In pari delicto. In equal fault; equally worthy of blame; equal in guilt. In pari delicto, potior est condi- tio defendentis. In a case of equal fault, the condition of the party defend- ing is the better. Or, In pari delicto, potior est conditio possidentis. In a case of equal fault, the condition of the party in possession is the better. Where adverse parties are equally in fault, the party who has the actual pos- session of the subject-matter should pre- vail. Where the fault is mutual, the law leaves the case as it finds it. The law does not encourage either of two persons who have colluded in an unlawful act to sue the other for a de- termination of their claims upon each other growing out of the violation of law. Thus, if a principal has en- gaged an agent to render " lobby ser- vices," contrary to public policy, in procuring the passage of a bill or the al- lowance of a claim, and it becomes neces- sary for the agent to sue for the prom- ised compensation, his suit is liable to be defeated, on the ground that, the transaction being unlawful, the court win not aid either. On the contrary, if the position of affairs is such that the principal must sue the agent, the same maxim may defeat him. In general, where both parties to a contract void as against public policy are equally at fault, the law will leave them where it finds them. If the contract is still ex- ecutory it will not be enforced, nor will damages be awarded for a breach. If it has been executed, the price paid or property delivered cannot be recovered back. Setter v. Alvey, 15 Kan. 157. In pari materia. Upon the same subject; in regard to the same matter. This phrase is applied to statutes, gen- IN 591 IN erally in reference to the rule that stat- utes in pari materia are to be construed together. Statutes which relate to the same person or thing, or to the same class of persons or things, are in pari ma- teria. Statutes are in pari materia which re- late to the same person or thing, or to the same class of persons or things. The word par must not be confounded with the term similis. It is used in opposition to it, as in the expression, magis pares sunt guam similes, intimat- ing not likeness merely, but iden- tity. It is a phrase applicable to the public statutes or general laws, made at different times and in reference to the same subject. Thus the English laws concerning paupers are construed together as if they were one statute, and as forming a united system ; otherwise, the system might, and probably would, be inharmonious and inconsistent. So of the bankrupt acts. Such laws are in pari materia. But private acts of the legislature, conferring distinct rights on different individuals, which can never be considered as being one stat- ute, or the parts of a general system, are not to be interpreted by a mutual refer- ence to each other. As well might a contract between two persons be con- strued by the terms of another contract between different persons. United So- ciety V. Eagle Bank, 7 Conn. 456. In perpetuam rei memoriam. In perpetual memory of a matter ; for the purpose of preserving a record of a mat- ter. The phrase is sometimes applied to depositions taken in order to preserve the testimony of the deponent. In personam. Against the person. Used of proceedings against a person, in distinction from proceedings against or concerning a particular piece of prop- erty, which are termed proceedings in rem, q. v. In posse. In possibility; not in ac- tual existence. A term applied to things which may be, but are not yet, in exist- ence, or to events which are possible, but have not yet occurred; as distin- guished from things in esse. In prsesenti. At the present time; at present. Distinguishing things pres- ent from things in/uturo. In propria persona. In his own person; himself. This phrase is ap- plied to appearances and other acts by a party in person, and not by attorney. In re. In the matter; in the matter of. This phrase is generally used in en- titling judicial proceedings other than actions between party and party, par- ticularly such proceedings as relate chiefly to the distribution or other dis- position of property; as proceedings in bankruptcy or insolvency. In rem. Against a thing; against property. This phrase is used of pro- ceedings against or concerning some particular thing or piece of property, in distinction from proceedings against a person, teTjned in personam. The judg- ment or decree sought in the proceeding marks the distinction between the two classes of remedies ; proceedings in per- sonam seeking the recovery of a personal judgment, and proceedings in rem a judgment which does not bind the par- ties personally, and the operation of which is confined to the subject-matter in specie. Proceedings in rem Include not only those instituted to obtain decrees or judgments against property as forfeited in the admi- ralty or the Englislv exchequer, or as prize, but also suits against property to enforce a lien or privilege in the admiralty courts, and suits to obtain the sentence, judgment, or decree of other courts upon the personal status or relations of the party, such as mar- riage, divorce, bastardy, settlement, or the like. Bouvier. In return natura. In the nature of things ; in existence. A plea that there if no such person in rerum natura, im- ported that the plaintiff was a fictitious person. In aolido. For the whole; as a whole; exclusive of others. A term of the civil law, and in common use in Louisiana. As applied to obligations or contracts, it is equivalent to the ex- pression "joint and several" in the common law; that is, an obligation in solido is one by which each of several obligors is liable for the whole amount, and a payment by one is a payment by all. The phrase is used in the same sense -in the law of partnerships. Pos- session in solidum is possession of the whole, — exclusive possession. The form in solidum was used by Roman INADMISSIBLE 592 INCHOATE ■writers, but in solido is the form pre- ferred in the modem civil law. In specie. In form ; in its own form; in its identical state; identically; speciflcally. A thing remains in specie 80 long as it retains its form, the ar- rangement of its parts, and its adapta- tion for its particular use; as a ship, which no longer exists in specie when broken in a mere congeries of planks. In terrorem. In warning; by way of warning; as a threat. The phrase is applied to legacies bequeathed upon condition that the legatee shall not dis- pute the validity of the will or of the disposition of property made by it. Such a condition is said to be merely in terrorem, and is often treated as a mere threat, the forfeiture not being always en- forced though the condition be broken. In totidem verbis. In so many words; in precisely the same words; word for word. In transitu. In transit; on the way; during passage or removal from one place to another. See Stoppage in transitu. INADMISSIBLE. Not entitled or proper to be admitted or received. See Admit. The word is most frequently employed to characterize evidence which is incom- petent, and ought to be altogether ex- cluded by the court, as distinguished from such as must be received and sub- mitted to the jury, though it may not deserve much credence. INALIENABLE. Not subject to alienation, surrender, or transfer. SSe Alieit. ' INAUGURATE. Among the Ro- mans, in ancient times, to consult the augurs, as the prophets and soothsayers were called, was a necessary preliminary ceremony to any important public act, such as the installatibn of a sovereign or chief magistrate. Hence the words to inaugurate and inauguration, which are used to designate the ceremonies usually attending the assumption of office by a new president, governor, &c. For the most part, however, these cere- monies have no legal importance or effi- cacy. They are observed by custom merely, and have their foundation only in the general interest which attaches to the event. All that is necessary to vest official authority in a president' elect is, that he should take the pre- scribed oath of office ; and the same is believed to be generally true as to the governors of states. INCAPACITY. Want of capacity, competency, or power. See Capacity. Incerta pro nullis habentur. Un- certain things are held for nothing; what is uncertain is of no effect, and void. INCEST. Sexual intercourse between persons so related in consanguinity that a marriage between them would be un- lawful. This does not seem to have been a punishable offence at the common law, though it was cognizable as one in the English ecclesiastical courts, nnder the canon law. Bish,. Cr. § 502; Jacob; 4 Bl. Com. 64. By statute, it has very extensively been made punishable. The statutory definition, of course, governs withiti each jurisdiction. The definition above given is, of course, subject to the general principle of criminal law, that ignorance of fact or compulsion may deprive an act of all criminal intent. Ignorance of the rela- tionship, and of any facts which should put the party on inquiry, would doubt- less exempt a person from punishment for incest; and a woman subjected to rape by a relative could not be convicted of incest. But these rules do not seem necessary to be incorporated in the defi- nition of the offence. The fact that the form of a marriage had been solemnized between two persons related within the prohibited degrees would have no effect to relieve intercourse between them of the character of incest. Incestuous adultery. The elements of this offence are, that defendant, being married to one person, has had sexual intercourse with another related to the defendant within the prohibited degrees. Cook 9. State, 11 Ga. 53. INCHOATE. Commenced, but not complete ; partially but not fully in existence or operation. The term characterizes rights during the period which elapses between the occurrence of the various facts which INCIDEIirT 593 INCOME must concur to give them full existence. Thus, to acquire full enjoyment of right of dower, marriage and the death of the husband must both have occurred. Be- tween the marriage and the husband's decease the wife is said to have an in- choate right of dower. A contract may be called inchoate between the time when it is negotiated and in fact agreed to or signed by one of the parties, and the time when the papers are completely executed and delivered. INCIDENT, n. A thing which is presented as accessory or subordinate to some other thing deemed more inde- pendent in existence. Incident (adj.) and incidental : accessory ; collateral ; connected in a subordinate position. Incident is properly used to denote any thing which is inseparably belonging to, connected with, or inherent in, another thing which is called the principal. Thus a court-baron is incident to a manor, and it is inseparably incident, so that it cannot be severed from it by grant. Again, rent is said to be incident to a reversion ; i.e., one of the inseparable qualities, or one of the necessary characteristics of a reversion. But the word is also used less properly to denote any thing which is connected with another thing, even separably. Thus, in the common phrase, " costs of and inciden- tal to " any suit or legal proceeding, the word can only be taken as meaning prop- erly incurred in connection therewith. Also,, the incidents of property may be either in- separable or separable; e.g., the right of alienation is separable in equity, although probably inseparable at law, from a fee- simple or fee-tail estate in lands, or an ab- solute interest in personal estate. Brovm. Incipitur. It is begun. This word was used in English practice as the name of any entry of record, in an ac- tion at law, made by giving merely the commencement of the pleading or other proceeding, without entering it at length. The phrase " entering the incipitur on the roll " may be thus explained : when the contending parties in an action have come to an issue, the plaintiff, in strictness, should enter the same, together with all the plead- ings prior thereto, on a roll of parchment called the issue-roll ; but this is now seldom done, the commencement of the pleadings only being entered thereon, which is termed entering the incipitur, i.e. the beginning, on the roll. The entry even of the incipitur is now, however, by a recent rule of court, rendered unnecessary. Brown. INOLOSURK See Enclosure. INCOME. Gains received from busi- ness, invested property, or other sources of pecuniary returns. The word is usually applied to what is received by individuals and to their receipts, before deduction of expenses or offsets. The funds accruing to gov- ernment are generally called revenue; and surplus of an individual's receipts, after deduction of expenses, is ordina- rily called profits, or distinguished as net income, j^^^ , / C^^^ Ut /• Advance in value of government bonds has been held not taxable as " gains, profits, or income," under the internal revenue act of 1867. Gray v. Darlington, 15 WaU. 63; compare Haight v. Pittsburg, &c. B. B. Co., 3 Pitlsb. 105. Whether promissory notes, book-ac- counts, &c., accruing during a given year, enter into the " income " of the year, sub- ject to the United States income tax, de- pends upon their intrinsic value or conver- tibility into money, property, or available assets. United States v. Erost, 9 Int. Ren. Rec. 41. The meaning of the word income, in the La. act of March 19, 1856, is, money received in compensation for services, such as wages, commissions, brokerage, &c. ; and is totally difEereut from the fruits of capi- tal invested in merchandise, stocks, &c. New Orlean-s v. Hart, 14 La. Ann. 815. Income, in a state statute exempting in- comes from taxation, means the creation of capital, industry, and skill. Wilcox v. Mid- dlesex County, 103 Mass. 544. The " income of an estate " means the profit it will yield after deducting the charges of management, or the rent which may be obtained for the use of it. The rent and profits of an estate, the income, or the net income of it, are all equivalent ex- pressions. Andrews v. Boyd, 5 Me. 199. Income means that which comes in or is received from any business or investment of capital, without reference to the out- going expenditures ; while profits generally means the gain which is made upon any business or investment when both receipts and payments are taken into account. In- come, when applied to the affairs of indi- viduals, expresses the same idea that reve- nue does when applied to the affairs of a state or nation. People v. Supervisors of Niagara, 4 HiU {N. Y.), 20; 7 Id. 504. The words " until income should be real- ized from the road," in a contract respect- ing a railroad, was held to mean profits over expenses, arising from the operation of the entire completed road. Manice v. Hud- son Biver E. B. Co., 3 Duer, 426. A testator directed an investment to be made for the benefit of his wife, the Income thereof, only, to be paid to her. The in- vestment was made in part in the stock of a bank, the charter of which afterwards expired, and it was reorganized under the INCOMPETENT 594 INCORPOREAL general law. A final dividend of eighteen per cent was paid to the trustees in stock of the new bank. It was held that so much of this dividend as was in excess of the premium paid by the trustees upon their purchase of the old stock was income to be paid to the widow. Simpson v. Moore, 30 Barb. 637. INCOMPETENT. Not able, com- petent, or qualified. See Competent. Incompetency: incapacity; want of legal power or efficacy. When used with reference to the action of persons in private or official relations, these words generally signify want of legal, not of actual or physical, power to perform the act in question; they im- port, not that the person cannot do the act in form, but that he cannot do it with legal efficacy, or so that it shall have valid operation. Thus an infant is said to be incompetent to contract; an executor to be incompetent to bring suit in certain cases; a judge to be ren- dered incompetent to try a cause by an interest in the subjeot-matte'r. As applied to evidence, whether docu- ments or testimony, the words mean, not proper to be received; inadmissible, as distinguished from that which the court should admit for the consideration of the jury, though they may not find it wor- thy of credence. INCORPORATE. To form or unite in one body. Incorporation : the act of bringing several elements into one body; the legislative act of uniting natural persons in one artificial one. Incorpo- rated: constituted as one; formed into one body; made a legal entity. The most important application of these terms is in reference to creation by the sovereign power of corporations. See Corporation. They are some- times found used, inooi-porate, as an adjective, in such expressions as incor- porate existence ; and incorporation, in the sense of a body incorporated, in such expressions as a joint-stock com- pany is not an incorporation. This use of tne words is undesirable. " Corporate " and " corporation " express these ideas fully, and should be used where these are the ideas intended. ' ' Incorporate ' ' and " incorporation," should be reserved to signify, as verb and noun, the act of creating a corporation. Incorporated oompsuiy. While a sole officer may be a corporation, he cannot be deemed within the term incorporated com- pany, in a statute punishing embezzlement by any clerk, &c., of any private person, or any agent, &c., of any incorporated com- pany. Hence a keeper of a county poor- house, employed as such by a superinten- dent of the poor, cannot be convicted under such statute of an embezzlement of the funds coming into his possession in his em- ployment. Such superintendent, in his re- lations to the keeper, cannot be deemed a private person; for the whole relation be- tween the two is of a public nature. And a superintendent of the poor cannot be deemed such an incorporated company as is intended by the provision. Coats v. People, 22 N. Y. 245. INCORPOREAL. Without body; not of material nature ; the opposite of corporeal, q. v. ' The same distinction is observable between the civil and common-law uses of incorporeal, as applies to corporeal, q. V, Incorporeal chattels, is a phrase which has been applied to bodiless inter- ests arising out of or incident to per- sonal property, analogous to non-mate- rial rights connected with land, which are called incorporeal hereditaments. Copyrights and patent-rights, stocks and personal annuities, have been mentioned as coming within the designation incor- poreal chattels. Boreel v. Mayor, &e.- of N. Y., 2 Sandf. 552, 559; 2 Steph. Com. (6th ed.) 9. Incorporeal hereditaments, is a phrase embracing all those heredita- ments which have no bodily existence or material substance, and cannot be known by the senses. It signifies the interests and rights which may be inherited, but are not physical or tangible. Various lists of the principal incor- poreal hereditaments have been given. Brown's classification, which is elaborate and instructive, is substantially as fol- lows: Incorporeal hereditaments, simply so called, comprise the following varieties: 1. Reversions. 2. Remainders, which, again, are either vested remainders or contingent remainders. 3. Executory interests. Purely incorporeal hereditaments com- prise the following varieties: INCUMBEITT 595 INCUR 1. Appendant incorporeal heredita- ments. These are such hereditaments of an incorporeal character as are neces- sarily, and therefore, from the earliest of times, have been attached to some corporeal hereditament, and are never separated therefrom. They are, a seigniory appendant, a right of com- mon appendant, and an advowson ap- pendant. 2. Appmrtenant incorporeal heredita- ments. These are such hereditaments of an incorporeal character as are not necessarily or originally attached to some corporeal hereditament, but have been attached thereto, either by some express deed of grant, or by prescription, which presumes a grant. The only example of an appurtenant incorporeal heredita- ment which need be given is, a right of common appurtenant. 3. Incorporeal hereditaments in gross. These are such hereditaments of an in- corporeal character as are not attached to any corporeal hereditament, but stand separate and alone. They comprise the following six varieties among others: a seigniory in gross, a rent-seek, a rent- charge, a right of common in gross, an advowson in gross, and tithes. Many of these incorporeal heredita- ments in gross may have been at one time incorporeal hereditaments, either appendant or appurtenant to some cor- poreal hereditament, from which, in some manner or other, they have been separated; and it is a rule of law that when an appendant incoi-poreal heredita- ment (e.g. an advowson) is once sepa- rated from the corporeal hereditament to which it was theretofore attached, it can never become appendant again, but must always for the future either remain in gross, or become appurtenant by some grant, express or presumed. INCUMBENT. Originally an ad- jective, but now often used as a noun, signifying a person in possession and exercise of an office. Appointment or election to an office, alone, does not constitute the person an incumbent. An incumbent of an office is one who is legally authorized to dis- charge the duties of that office. For instance, a man who is elected county treasurer is required to give bonds and take an oath of office. These things must be done before he can dis- charge the duties of the office; and, if they are not done in due time, the office itself is vacant: there is no in- cumbent. So, where a man is elected judge, he does not, by the election, be- come a judge. He must receive a com- mission, as evidence of his authority to act; must take an oath of office, and have it indorsed on his commission. When this is done, and not befoi-e, he is an "incumbent" of the office. State V. McCollister, 11 Ohio, 46. In England, the term is especially used of ecclesiastical persons. An incumbent is a clerk duly possessed of or resident on his benefice, with cure. It is said that four things are necessary to the being a complete incumbent: Presenta- tion; that is, the patron's free gift or commendation of his clerk to the par- sonage or vicarage, by presenting or offering him to the bishop. ■ Admission of such clerk by the bishop, by his allow- ance or approbation of him after due examination, and by making record of his name accordingly. See Admit. Institution of such clerk to such bene- fice by the bishop or collation. Intro- duction or induction, q. v. INCUMBRANCE. An interest in or charge upon land, which may subsist in or in favor of a third person consist- ently with a transfer of the fee, but diminishes the value of the estate to the occupant. It is an estate, interest, or right in lands, diminishing their value to the general owner ; a paramount right in or weight upon land, which may les- sen its value. Newcome v. Fiedler, 24 Ohio St. 463. Incumbrancer: a person entitled to enforce a charge or right upon or against real property. One of the most important uses of the application of the word is in what is termed the covenant against incum- brances ; a stipulation on the part of a grantor in a deed that there are no charges or claims upon the land (except those specified) which may diminish its value to the grantee. INCUR. Men contract debts, they in- cur liabilities. In the one case, they act affirmatively ; in the other, the liability is incurred or cast upon them by act or oper- INDEBITATUS 596 INDEMNITY ation of law. Incur means something be- yond contracts, — something not embraced in the word debts. Crandall d. Bryan, 15 How. Pr. 48 ; 5 Abb. Pr. 162. A bond to indemnify plaintiff against " all costs, charges, and expenses which he shall incur," is not broken by his merely becoming liable for costs, &c. ; but he must first be damnified by their payment. Scott v. Ty- ler, 14 Barb. 202. The phrase, damages incurred, as used in Laws of 1838, 253, making an owner who neglects to fence liable therefor, means dam- ages brought on, i.e. by one's own negligence. Deyo V. Stewart, 4 Den. 101. Indebitatus assumpsit. Being in- debted, he undertook. These were tlie emphatic .words of the Latin forms of the old common counts in the action of assumpsit, which, after setting forth an indebtedness of the defendant to the plaintiff, alleged that, being so indebted, he undertook and promised the plaintiif to pay, &c. The phrase came to be com- monly used as the distinctive name of that species of the action of assumpsit in which the declaration set forth an indebtedness between the parties and a promise to pay by the defendant in con- sideration of such indebtedness. The promise relied on was generally an im- plied one merely; an express promise not being necessary to sustain the ac- tion. INDEBTED. Under obligation to pay money. Indebtedness: the condi- tion of owing money. The words imply an absolute or com- plete liability ; a contingent liability, such as that of a surety before the prin- cipal has made default, does not consti- tute indebtedness. On the other hand, the money need not be immediately payable ; obligations yet to become due constitute indebtedness as well as those already due. St. Louis Perpetual Ins. Co. V. GoodfeUow, 9 Mo. 149. Thus " indebted " includes one's obligation upon notes which have not yet matured, Grant v. Mechanics' Bank, 15 Serg. §• R. 140 ; Sewall v. Lancaster Bank, 17 Id. 285 ; and includes a liability to pay for stock subscribed, though the instal- ments have not yet been called in, Pitts- burg, &c. R. R. Co. V. Clarke, 29 Pa. St. 146. Compare Debt; Due. INDECENCY. It is said to be an established doctrine of the criminal law that whatever openly outrages decency and is injurious to public morals is pun- ishable upon common-law principles as a misdemeanor. Whatever scandalizes the public by shockiug its sense of de- cency is a nuisance. See 1 Russ. Crimes, 326; 2 Whart. Crim. Law, § 2385; Id. § 2544. Statutes have greatly aided this jurisdiction in recent years. But we do not find that the cases or text- books concur in any distinct definition of indecency, in this connection, or even put forth any specific criteria by which it may be determined. The judgment of the court and jury upon the acts or publication proved, in the particular case, gives the decision as to whether it is indecent. INDEFEASIBLE. That which can- not be defeated or made void; an en- gagement or transfer which is absolute, as distinguished from one which gives the party a privilege to escape, or cancel it by performing something else. INDEMNIFY. To make free of loss; The word is used with two shades of meaning : 1. To make compensation for a loss already sustained; 2. To give assurance or security that one shall have compensation for a loss anticipated. WeUer v. Eames, 15 Minn. 461. Thus one may speak of indemnifying an owner of land taken for public use, meaning to pay him the value ; or of indemnifying the sheriff, meaning to give a bond to reimburse any damages which may be collected from him. INDEMNITY. 1. Something given in compensation for a loss already in- curred. 2. An assurance or engagement to make good an anticipated loss. Thus it is said that insurance is a contract of indemnity. A bond to repay a sheriff any damages he may sustain by comply- ing with directions as to levy of an exe- cution is called an indemnity; strictly, it is a bond of indemnity. It is usual to insert in settlements and wills a clause of indemnity for the pro- tection of the trustees acting in the trusts created therein. And where (as not infrequently happens) the trustees, at the urgent request of their cestuis que trust, commit what is technically a breach of trust, but the act is done bona fide and for a present advantage, it is not INDENT 597 INDIAN unusual to give, and the trustees have a right to demand from the cestuis que trust requiring them so to act, an express deed of indemnity. Such deed may either consist in the personal covenant of the parties, or not only in such per- sonal covenant, but also in the setting apart a fund, called an indemnity fund, to recoup the trustees any outlay which they may have to incur or be put unto in consequence of their having so acted. 3. A legislative act, assuring a general dispensation from punishment or ex- emption from prosecution to persons involved in offences, is called an indem- nity; strictly, it is an act of indemnity. Acta of indemnity are such as are passed for the relief of those who have neglected to take the necessary oaths, or to perform other acts required to qualify them for their offices and employments. So acts of indem- nity, after rebellions, have been passed for quieting the minds of the people, and throw- ing former offences into oblivion. Brown. INDENT. To cut in the similitude of teeth. Indenture: originally, a writ- ten instrument cut on the margin, in teeth, as it were; more lately, a sealed instrument executed between two or more parties, as opposed to a deed-poll. In the forms of ancient conveyancing, when an instrument was to be executed in counterparts between two or more parties, it was customary to engross the two counterparts on one piece of paper, leaving a blank strip between them, and then to cut them apart with a notched, crooked, or waving line. See Chiro- GRAFB. This was an additional pre- caution against offering a pretended false substitute for either counterpart; for it was not likely that any cutting of the edge of the substitute would corre- spond with either of the genuine ones, whereas the two edges of the genuine would match precisely. The use of this device gradually declined; and it has been formally declared needless by stat- ute in England, and we think has now been generally disused in the United States, though Mr. BurrUl (Diet., ed. of 1850) says ithat " careful conveyancers continue to notch or scallop the edge of the paper at the tops of deeds." But the word indenture has been re- tained to signify an instrument of the class which in old times was usually in- dented ; that is, one which was to be ex- ecuted by two (or more) parties, each of whom should retain a counterpart. In the case of a deed by one party where one copy only was made, indent- ing was inapplicable ; hence indented deed, or indenture, and deed-poll, were apt terms to describe the two kinds. Indentures is often used as a short expression for indentures of apprentice- ship, the instrument by which a youth is bound apprentice to a master. An indenture is a deed ; that is, a writing sealed and delivered. It takes its name from being indented or cut on the top or on the side, either by a waving line or a line of indenture, — instar dentium, — so as to fit or aptly join the counterpart from which it is supposed to have been sepa- rated. A seal is necessary to constitute an indenture. Overseers of HopeweU v. Over- seers of Amwell, 6 N. J. L. 169. Indenture is not a, technical term ; and the use of it in a declaration does not nec- essarily imply that the instrument in ques- tion was sealed. That is only effected by the use of the terms " deed " or " writing obUgatory." Magee v. Fisher, 8 Ala. 320. INDEPENDENT. Where the obli- gation to perform a covenant within an instrument rests entirely upon the re- quirements of the covenant itself, with- out regard to others, the covenant is termed an independent one. Index anlmi sermo. Language is the exponent of the intention. The language of a statute or instrument is the best guide to the intention. INDIAN. It is matter of somewhat familiar history that the discoverers of this continent in the fifteenth century applied the name Indians to the abori- ginal inhabitants, from the erroneous supposition that India had been reached. The name, retained in common use not- withstanding the error in which it orig- inated, is equally established in the statutes and in legal usage to designate this race. The term Indian, in a statute, should not be restricted to persons of full Indian blood, unless there is something to show affirma- tively that such restriction was intended. As generally used, it includes descendants of liidians who have an admixture of blood with white or negro blood, if they still re- tain their distinctive character as members of the tribe from which they trace descent. Wall V. Williams, 11 Ala. 826. Half-breed Indians are to be treated as Indians in all respects, so long as they re- INDICIA 598 INDICTMENT tain their tribal relations. 7 Op. Att.-Gen. 746. The child of a, white woman, though born of an Indian father, is legally of the white race. United States v. Sanders, Bempst. 483. A person having three-eighths Indian blood was held, under peculiar circum- . stances, an Indian, within the meaning of Ind. EcT. Stat. 1843, 414, § 3. Lafontaine t>. Ayaline, 8 Ind. 6. In Indian treaties, the words " Indians by descent " have been often used to designate not only persons of mixed Indian blood, but as collectively applicable to both tliose of the full blood and of mixed white and Indian blood. Campau v. Dewey, 9 Mich. 381. It does not follow, because an individual is the chief of an Indian tribe, that such person is an Indian. Harris v. Bamett, 4 Black/. 369. A white man, who is incorporated with an Indian tribe at mature age, by adoption, does not thereby become an Indian, so as to cease to be amenable to the laws of the United States, or to lose the right to trial in their courts. United States v. Bogers, 4 How. 567; Hempst. 450; United States v. Ragsdale, Id. 497 ; 2 Op. Att.-Gen. 693 ; 4 7a. 258; 7 7d. 174. " The Indian country," within the mean- ing of the act declaring it a crime to intro- duce spirituous liquors therein, is only that portion of the United States which has been declared to be such by act of con- gress ; and a coimtry which is owned or in- habited by Indians in whole or in part is not therefore a part of " the Indian coun- try." United States v. Seveloff, 2 Sawyer, 311 ; 17 Int. Bee. Bee. 20. INDICIA. Appearances; indications; marks; signs. Thus, circumstances at- tending a transaction which excite a suspicion that fraud was intended, are called indicia of fraud. INDICTMENT. A formal, written accusation or charge of crime, preferred upon oath by a grand jury, at the suit of the government, upon a complaint made, and as a basis for a trial of the accused. To indict, is spoken of the act of the grand jury in preferring such an accusa- tion. Indicted, is used to characterize the person against whom it is preferred. Old books call the person who indicts another man of an offence the indictor, and he who is indicted the indictee; but those terms are not now in use. The proceeding by indictment is to be distinguished from other modes of accusation or prosecution of crimes, par- ticularly presentment and information. A presentment differs from an indict- ment in that it is an accusation made by a grand jury of their own motion, either upon their own observation and knowledge, or upon evidence before them; while an indictment is preferred at the suit of the government, and is usually framed in the first instance by the prosecuting officer of the govern- ment, and by him laid before the grand jury, to be found or ignored. An infor- mation resembles in its form and sub- stance an indictment, but is filed at the mere discretion of the proper law officer of the government, without the inter- vention or approval of a grand jury. Story Const. §§ 1784, 1786. In the ordinary form, an indictment consists of a caption or commencement, a statement or charge of the ofience, and a conclusion. The caption is generally considered not strictly a part of the in- dictment, although the matters usually contained in it form an essential poi-tion of the record of the proceedings. Its office is to state with reasonable cer- tainty the style of the court, the term or time and place where and by whom it is held, the time and place where and the jurors by whom the indictment is found. In charging the offence, the accused must be designated with certainty by his name, if known, and formerly by the proper addition for his estate, de- gree, or mystery; although such addi- tions are now usually dispensed with by provisions of statute in most of the United States. The parties injured or other third parties are also to be cer- tainly designated, although no addition is necessary. Time and place must be attached to every material fact averred; stating, as to the time, the day, month, and year, the time of the day not being requisite except where it is one of the constituent parts of the offence, as in burglary; and as to place, the venue of the offence must be so described as to show that it was within the jurisdiction of the court. The statement of the of- fence must be such that the offence may judicially appear, and its description must be technically exact. The charge must not be in the alternative or dis- junctive, or so made as to leave any un- INDIFFERENT 599 INDORSE certainty as to what is really intended to be relied on to support the accusation. The rules as to the sufficiency of the de- scription of personal chattels, -written instruments, &c., vary with the differ- ent subject-matters, and the degree of particularity appropriate. Various tech- nical words which are considered essen- tial to the proper description of certain crimes, or certain classes of crimes, must be used in indictments for those of- fences. Thus the word feloniously is essential in all indictments for felony, whether common-law or statutory. The offence may be set forth in different ways in different counts of the same in- dictment. To a limited extent, differ- ent offences arising out of the same act or transaction are allowed by statutes in many of the United States to be joined in the same indictment; but, with some few exceptions, a joinder in one count of two or more distinct oifences renders the indictment bad for duplicity. Where one material averment is contradictory to another, the repugnancy renders the whole indictment bad. In the conclusion of an indictment, the ofience charged is, in most of the United States, stated to be against the peace and dignity of the state or com- monwealth; or, where the offence is created or defined and prohibited by statute, an indictment should conclude against the form of the statute in such case made and provided. In many of the states, it is usual, or even essential, that an indictment should be signed by the prosecuting officer, or by the foreman of the grand jury. The finding of an indictment by the grand jury is expressed by indorsing upon it the words "a true bill," usually with the signatui-e of the foreman. Indictment means a written charge of a crime or misdemeanor, preferred to and presented by a grand Jury upon oath, irre- spective of details of form usually ob- served. A constitutional provision that no person shall be put upon trial except upon an indictment, does not confine the legisla- ture to the exact form of an accusation by a grand jury, which was in use when the constitution was promulgated; but they may change the incidents of form, preserv- ing the, substance. Wolf v. State, 19 Ohio St. 248. INDIFFERENT. Impartial; unbi- That an arbitrator or a juror ought to be indifferent between the par- ties is a common legal expression. Indifferent has the same meaning in legal as in popular usage. It requires that the person of whom it is predicated shall be im- partial and free from bias. This cannot, in general, be affirmed of the father, brother, or nephew of a party. Near relationship raises a presumption of partiality. A nephew of a party should be deemed ex- cluded by a statute which requires that ap- praisers shall be indifferent persons. Fox V. Hills, 1 Conn. 294. Upon the same principle, a tenant of a party ought not, under such a statute, to be appointed appraiser. Mitchell v. Kirtland, 7 Conn. 229. INDORSE. To write upon the back. _2 Indorsed: having something written „ upon it. Indorsing and indorsement: the act of writing something additional or collateral to an instrument, upon the back of it. Indorsement, also, some- times means the thing so written. The orthography endorse, has been strongly recommended by some author- ities; but the general tendency, in re- cent years, seems to be in favor of in- dorse. These words have a general use in application to all sorts of writings. The recipient of a letter is said to indorse upon it a memorandum of the writer's name and date. Deeds are indorsed with date of recording and reference to book and page of record. Papers offi- cially filed are indorsed vrith the date of receipt. Under some .systems of prac- tice, a plaintiff must procure a person to indorse his writ; that is, write his name upon it, in token that he guarantees the defendant's costs. A warrant of arrest for crime, issued in one county, but re- quiring to be executed in another, must in many states be indorsed by a magis- trate of the latter county. There is a special application, and one of great and familiar importance, in the law of biUs and notes ; and under this head the words indorser, meaning the person by whom an instrument is trans- ferred by indorsement, and indorsee, meaning the person to whom one is so transferred, must be added. The use of these terms is practically confined to parties to transfer of negotiable instru- ments. Etymologioally, to indorse, spoken of INDORSE 600 INDORSE a bill or note, means simply to write some memorandum or name upon its back. But by the custom of merchants and the familiar rules of the law-mer- chant, commercial paper is transferred by the owner's writing his own name upon the back, and delivering the instru- ment to the transferee intended; and this transaction implies an 'engagement that, if the obligation of the paper is not met at maturity, the party who has in- dorsed and transferred it wiU, on con- dition of receiving notice of dishonor as prescribed by law, make payment in place of the maker. As generally used, and where nothing in the circumstances or context show a more restricted mean- ing, indorsement of a bill or note means a transfer made by a holder's writing his name on the back, under an implied engagement that, upon notice of dis- honor, he win pay it. To indorse means to transfer under this engagement; and indorser and indorsee are the parties who make and receive such transfer. But the words may be used of the trans- fer only, without including the engage- ment to be liable. The two are separa- ble; the writing may be done with in- tent only to pass the title, or even only to enable the recipient to collect the money. Where, however, the various forms of indorse are used, meaning a transfer only, there is generally some- thing in the context to disclose the re- striction, as by using the phrase to in- dorse without recourse. Used unquali- fiedly, they generally import both the transfer and. the engagement of guar- anty. As the intent to transfer and guaran- tee is the substance of indorsement, and the placing the name on the back of the instrument is mere matter of form and accidental convenience, it seems that indorse might be used of an equivalent transfer made in other ways ; as by writ- ing upon the face of the note, or upon a separate slip to be attached to it. See Allonge. Such a writing, upon proof of the intent of the parties, would un- doubtedly create the rights and liabili- ties of an indorsement, and hence might be called an indorsement; but such is not the usual signification. A blank indorsement is one where the name of the indorser only is written, leaving the person to whom the paper is transferred at liberty either to write in his own name, or to transfer the paper by mere delivery, as he pleases. A /uM indorsement is one in which the indorser writes a direction to "pay to the order of ," naming the in- dorsee, and signs his name ; the effect of which is, that the indorsee can transfer only by another indorsement. Indorsements are called qualified when they embody a restriction or modifica- tion of the liability of the indorser. Perhaps the most common instance is the indorsement " without recourse," which signifies that the indorser merely transfers the title, and disclaims liability for non-acceptance or non-payment. It is made by prefixing to the iudorser's signature the words, " without re- course." Another modification of the liability which is opposite in its nature consists in a waiver of the right to strict demand and notice, which is made by prefixing to the iudorser's signature the words, " holden without demand or notice." Mr. Daniels (1 Dan. Neg. Inst. 498) explains the import of the ordinary, un- restricted contract of indorsement to be, as to a bill, that the indorser wiU pay it at maturity, if on presentment for ac- ceptance it is not accepted, and he is duly notified of the dishonor; and, as to a bin or note, that the indorser will pay it if it is not duly paid by the acceptor or maker, and the indorser is duly noti- fied. It further imports that the bill or note is in every respect genuine; that the signatures of the immediate parties, and, according to the better opinion, of any prior indorsers, are genuine. Fur- ther, that the biU or note is a valid and subsisting obligation, binding all prior parties according to their ostensible rela- tions. Further, that the original parties, and, according to the better opinion, prior indorsers, were competent to bind themselves, as they have assumed to. Further, that the indorser has the law- ful title to the instrument, and the right to transfer it. To indorse means to put a name on the back of a paper. Hartwell v. Henunen- way, 7 Pick. 117. INDORSE 601 INDUCTION Indorse is a technical term, having suffi- cient legal certainty without words of more particular description. Brooke v. Edson, 7 Vt. 351. Indorsed may mean, merely, written upon. Commonwealth v. Butterick, 100 Mass. 12. Indorsement implies a transfer by a writing upon the instrument transferred. Keller v. Williams, 49 Ind. 604 ; Bradley v. Trammel, Hempst. 164. Indorsed may import both indorsement and delivery. Higgins v. Bullock, 66 III. 37. Indorsement is a technical, mercantile term, denoting the act by which bills and notes drawn payable to order are trans- ferred. It is used, not in its strict etymo- logical sense, which would imply a writing on the back, as is evident from the consider- ation that what is, in legal signification, an indorsement of a bill or note need not be written on the back of it ; but in an artifi- cial sense, to signify the transfer of the legal title to these instruments. It is there- fore a contract, and, so far as it operates as a transfer of the bill or note, is of that class of contracts which are termed exe- cuted. An -indorsement, however, in addi- tion to being such a conveyance, imports, unless restricted, a future liability of the indoi'ser, and, so far as respects that liabil- ity, it is an executory contract. Now, it is a universal principle applicable to every con- tract, whether executed or executory, evi- denced by a written instrument, that the instrument must be delivered and accepted. Hence the mere act of writing the name of the payee on the back of the note is not sufficient to constitute an indorsement of it ; to complete it as such, the further act of a delivery of it to the person to whom title is to be transferred is necessary. It has been judicially settled in repeated cases that " indorse " and " indorsed " import delivery. (12 Ad. Sr E. 455; 8 Mee. ^- W. 494; 1 Id. 389.) And in pleading it is now usual to state merely that the payee indorsed the instrument to the indorsee, omitting any express allegation of delivery ; and this is sanctioned on the ground that indorsing imports delivery. Clark b. Sigourney, 17 Conn. 511. Indorsement imports not simply a trans- fer of the paper, but a new and substantive contract which imposes upon the Indorser a liability to the holder, for damages, accord- ing to the law of the place where the in- dorsement is made. Slacum v. Pomery, 6 Cranch, 221 ; 8. p. Boot v. Wallace, 4 Mc- Lean, 8. It is not impossible for one to become an indorser by placing his name upon the face of a note. This is not the usual mode of transfer, and the word indorse conveys the idea of writing upon the back. But the payee's name may be written on the face, and it be held an indorsement. Haines v. Dubois. 30 N. J. L. 259. To indorse is to write upon ; and a bill or note is indorsed by writing the matter, whafr ever it is, across the face or back of it. 2 Bish. Cr. L. § 570 a. INDUCEMENT. 1. Motive; that which leads a person to act. Confessions of crime are spoken of as sometimes made under inducement of hope or fear. When these motives operate to produce the confession, it cannot be received in evidence. In the case of contracts, inducement is nearly equivalent to consideration. There is, however, a shade of difEerence: consideration presents the idea of an element in the contract ; inducement, of a motive or desire in the mind. So, in respect to any other act which the law has occasion to review, the in- ducement to it is the cause which led to it, presented as a motive or desire acting in or upon the mind of the actor. 2. In pleading, inducement is applied to that portion of a declaration, com- plaint, plea, answer, &c., in an action, which is brought forward by way of explanatory introduction to the main allegations. In form it is usually somewhat like the preamble in an act, or the recitals in a deed, and com- monly commences with the word where- as. Thus, in a declaration for libel, that introductory part which states " that whereas the plaintifE was a good, true, honest, just, and faithful sub- ject of the realm, and as such had always conducted and behaved him- self," &c., is the inducement, and the matter thus brought forward was thence termed "matter of inducement." In declarations on contract there is not, in general, any inducement, as they usually begin by alleging the contract ; on the other hand, in actions on many of the torts, all that part of the declara- tion which precedes in logical order the statement of the act which is complained of as wrongful, comprising the allega- tion of the right, or of the circum- stances of the right, is commonly known as the inducement. The importance of stating matter of inducement, and the rules as to the form of introducing it, have been much relaxed by modern leg- islation upon pleading. INDUCTION. In ecclesiastical law, is the ceremony of giving the clerk or INEVITABLE 602 INF AMY parson corporal possession of the tem- poralities of the benefice. A usual form has been to lead, the person to be inducted within the church buUding, where he toUs the bell, or does some other act in token of taking possession. The intention of it is, that the parish- ioners may have due notice and suffi- cient certainty of their new minister, to whom their tithes are to be paid. In- duction, therefore, is the investiture of the temporal part of the benefice, as in- stitution is of the spiritual. INEVITABLE. Fortuitous; that which cannot be avoided or prevented. Applied to events which so overwhelm and frustrate human powers and exer- tions as to excuse from the performance of even the more stringent contract ob- ligations. . See Accident; Act of God. Inevitable accident. An inevitable accident is one produced by an irresistible physical cause; an accident which cannot be prevented by human skill or foresight, but results from natural causes, such as lightning or storms, perils of the sea, inun- dations or earthquakes, or sudden death or illness. By irresistible force is meant an interposition of human agency, from its na- ture and power absolutely uncontrollable. Brousseau v. Hudson, 11 La. Ann. 427. Inevitable or unavoidable accident is de- fined to be " that which a party charged with an offence could not possibly prevent, by exercise of ordinary care, caution, and maritime skill." (2 Dods. 83 ; 2 Vf. Rob. 205; Flanders Mar. L. 298.) Lucas v. The Swann, 6 McLean, 282 ; 1 Newb. 158. The inevitable accident which constitutes a proper case for allowing the loss to rest where it falls, must be understood to mean a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident. (3 W. Rob. 318; 21 How.l&i; 6 Notes of Cases, 634; 5 Id. 558 ; 7 Jur. 381 ; 40 Eng. L. ^ Eq. 25 ; 2 Id. 564.) Union Steamship Co. v. New York & Virginia Steamship Co., 24 How. 307 ; s. p. The Morning Light, 2 Wail. 550. Inevitable accident is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is reasonable under the circumstances; such as is usual in similar cases, and has been found by long experience to be suffi- cient to answer the end in view, — the safety of life and property. The Grace Girdler, 7 Waa. 196. Inevitable accident is distinct from act of God, which is some natural necessity. Trent, &c. Nav. Co. v. Wood, 4 Doug. 287. The words inevitable accident, which are preferred by some to " act of God," because more reverent, are not adequate to express the ground of a common carrier's excuse ; for accidents arising from human force or fraud are sometimes inevitable. McArthur V. Sears, 21 Wend. 190, 198. Inevitable accident is now used as a phrase synonymous with "act of God." Neal V. Saunderson, 3 Miss. 572. Whether the phrases inevitable accident and unavoidable accident are synonymous, see Fowler v. Davenport, 21 Tex. 626 ; Neal V. Saunderson, 3 Miss. 572 ; Merritt v. Earle, 31 Barb. 45; Fish v. Chapman, 2 Ga. 349. INFAMY. A qualification of one's legal status, imposed as a consequence of conviction of one of the graver crimes. In many jurisdictions, infamy involves, by force of statute provisions, other dis- abilities ; it may affect the right to hold office, the qualification for jury duty, &c. For these rules the statutes of the state or country must be consulted. Infamous crime. The term infa- mous — i. e. without fame or good re- port — was applied at common law to certain crimes upon the conviction of which a person became incompetent to testify as a witness, upon the theory that a person would not commit so heinous a crime unless he was so de- praved as to be unworthy of credit. These crimes are treason, felony, and the crimen falsi; but as to what or whether all species of the crimen fahi are to be considered infamous, there is some apparent disagreement among the authorities. That term is borrowed from the civil law, where it included every species of fraud and deceit or wrong involving falsehood. The better opinion seems to be that the common law has not used the term in this con- nection in so extensive a sense; and that a crime is not infamous (within the meaning of the prohibitions contained in the 5th amendment to the federal constitution) unless it involves a charge of such falsehood as may injuriously af- fect the public administration of justice by the introduction therein of falsehood and fraud, such as forgei-y, perjury, sub- ornation, bribery, or conspiracy to pro- cure the absence of a witness. United States V. Block, 4 Sawyer, 211. Other authorities give somewhat dif- INFANCY 603 INFERIOR ferent lists; but the general idea has been to include the offences which from their heinous character, or from their peculiar character as involving deception and dishonesty, forbid confidence in the truthfulness of the person convicted of them. There are many instances in which a statute defining and punishing a crime declares that it shall be deemed infamous. But the question what is to be deemed an infamous crime cannot be determined without examining the law of the juris- diction ; for the oases, while they agree on the general principle, difEer somewhat in the application of it to particular offences. And statutory definitions may cover the ground for a particular state. Thus, in New York, by 2 Rev. Stat. 702, § 31, " infamous crime," used in any statute, means any offence punishable with death or imprisonment in a state prison. By infamia juris is meant infamy estab- lished by law as the consequence of crime ; infamia facti is where the party is supposed to be guilty of such crime, but it has not been judicially proved. Commonwealth v. Green, 17 Mass. 515, 541. Infamous, as used in the fifth amend- ment to the United States constitution, in reference to crimes, includes those only of the class called arimen falsi, which both in- volve the charge of falsehood, and may also injuriously affect the public administration of justice by introducing falsehood and fraud. United States v. Block, 15 Bankr. Beg. 325. Where a statute imposed ptmishment for falsely accusing another of an infamous crime, it was held that such crimes only were to be deemed infamous as subjected a man to infamous punishment, or incapac- itated him from being a witness ; and there- fore a threat to accuse a man of having made overtures to a prisoner to commit sodomy with him did not amount to a threat to charge him with an infamous crime. Hickman's Case, cited Tomlins Diet. INFANCY. The condition, disability, or status of a person who has not attained the age of general legal capacity, usually twenty-one years; minority; non-age. Infant: a person not yet twenty-one years old; a minor; a person under age. In the GivU law, the corresponding term infantia comprised the period un- der the age of seven years. The full age of twenty-one years is completed on the day preceding the an- niversary of a person's birth; and as, in the computation of time, the law in gen- eral allows no fraction of a day, it fol- lows that, if an infant is born on the 1st of January, he is of an age to do any legal act on the morning of the last day of December, though he may have lived nearly forty-eight hours (or two days) short of the twenty-one years. INFANTICIDE. See Homicide. INFERIOR. Is usually employed in law to designate the lower of two grades of authority, jurisdiction, or power. In the vernacular, it has wider use, it may relate to grades of any attribute or qual- ity under consideration ; a subject may be presented as inferior in beauty, in moral qu^ities, in value, &c. But, in law, the most frequent occasions to use the term are to designate some officer or tribunal as having a lower degree of authority or jurisdiction than another, termed, relatively, the superior. Inferior courts. This expression has two meanings which require to be care- fully distinguished. 1. It means sub- ject to appellate jurisdiction." In the decisions of a court of appeal, the court below is often spoken of as the inferior court. The expression inferior courts is used to designate, as a class, all the tribunals of a state which are subject to have their judgments revised by a court of last resort. Thus a court named the superior court, as the superior court of Indianapolis, may be one of the inferior courts of the state, using that phrase to denote all the tribunals not of last resort. 2. It is used to designate that class of tribunals whose jurisdiction is so limited or dependent on existence of facts pre- scribed by express statute, that the cir- cumstances warranting its action must appear by the record of its proceedings, else its judgment is void. The distinc- tion between courts of original and gen- eral jurisdiction over any particular sub- ject, and courts of special and limited jurisdiction, otherwise called inferior courts, is this: the former are competent by their constitution to decide upon their own jurisdiction, and to exercise it to a final judgment, without setting forth in their proceedings the facts and evidence upon which it is rendered. Their records import absolute verity, and cannot be impugned by averment or proof to the contrary; there can be INFERIOR 604 INFORMATION no judicial inspection behind the judg- ment, save by appellate power. The latter are so constituted that their judg- ments may be looked through for the facts and evidence necessary to sustain them; their decisions do not furnish evidence of themselves to show jurisdic- tion and its lawful exercise; every req- uisite for either must appear upon the face of their proceedings, or they are nullities. Grignon ». Astor, 2 How. 319, 341. The two uses of the phrase are well illustrated by the course of decisions as to the circuit and district courts of the United States. They are inferior courts in the sense that their judgments are usually subject to the revision of an appellate tribunal, the supreme court. But they are not inferior courts in the second sense of that expression. Al- though they are wholly the creatures of statute, and are courts of limited juris- diction, so that their proceedings are erroneous' if the jurisdiction be not shown upon them, and judgments ren- dered in such cases may be reversed, yet their proceedings are not nullities which may be entirely disregarded if the jurisdictional facts are not shown therein. Exp. Walkins, 3 Pet. 193. Apart from the specific question of the , quality of the parties or nature of the controversy, they are to be deemed, in respect to the force and effect of their judgments and decrees, as standing upon the same footing as courts of general ju- risdiction. If the jurisdictional facts do not appear upon their records, their judgments .and decrees may be re-exam- ined in due course lOf procedure for that purpose. But such defect does not make them nullities which may be dis- regarded in a collateral proceeding, as is the case with those courts of limited and special jurisdiction which are de- pendent for the validity of every step upon the statute authority. Ruckman V. Cowell, IN. Y. 505; Chemung Canal Bank v. Judson, 8 Id. 254; McCormick V. Sullivant, 10 Wheat. 192; Kennedy u. Georgia State Bank, 8 How. 586; Hufi V. Hutchinson, 14 Id. 586. In England, speaking of usage before the enactment of the judicature acts, the courts of justice were classed, generally, under two heads; viz., the superior and the inferior, — the former division com- prising the courts at Westminster; the latter comprising the other courts in general, many of which, however, are far from being of inferior importance in the common acceptation of the word. Those courts which are generally under- stood by the phrase " the superior courts at Westminster " are the court of chan- cery, king's bench, common pleas, and exchequer. Stephens enumerates the following nine classes of inferior courts, of some of which, however, the jurisdiction is obsolete: the courts-baron; the hun- dred courts; the sheriffs' county coiurts; the modem county courts, established in 1846 by Stat. 9 & 10 Vict. ch. 95; courts in cities and boroughs held by prescription, charter, or act of parlia- ment; the courts of the commissioners of sewers ; the stannary courts ; the uni- versity courts; the ecclesiastical courts. The phrase inferior tribunals, as used in Iowa Laws 1868, ch. 86, § 5, and 1870, ch. 153, § 2, does not apply to the quasi judicial bodies from which appeals in special pro- ceedings for the assessment of damages upon the location of highways, railroads, and other improvements are authorized to be taken to the district court. Davey ». Burlington, &c. R. E. Co., 31 Iowa, 553. INFORMATION. Communicated knowledge. In law, a complaint or accusation in proceedings on behalf of the goverment in civil cases, and in criminal cases, as a substitute for an indictment. In English practice, informations were used in the following civil cases : informations in chancery, differing from biUs only in being instituted in the name of the attorney-general, instead of being brought in the name of a subject merely ; informations in the exchequer to recover money or damages for the crown ; infor- mations in the queen's bench in the na- ture of a quo warranto, for the purpose of trying the right to a franchise ; and infor- mations on penal statutes, which give the informer a share in the penalty,' commonly called informations qui tarn. Criminal informations were filed in the queen's bench, usually by the attorney- general ea; officio. The term informa- tion was also applied to a proceeding INFORMATUS 605 INFEINGEMElirT before a justice of the peace, with a view to a summary conviction. The mode of proceeding by informa- tion is said to be as old as the common law itself. In all civil suits immediately concerning the crown or government only, the proceeding was in the name of the attorney-general alone; but in other cases, an individual interested in the maintenance of the public right sought to be enforced was named as re- lator, and became responsible for the conduct of the suit and for the costs. Criminal informations were restricted to cases of misdemeanors. In the United States, the proceeding by information has been adopted in many of the states in civil cases similar to those above mentioned, so far as such cases arise under their different political institutions ; the more familiar exam- ples are informations in the nature of a quo warranto, and qui tarn informations. As remedies, these proceedings are fre- quently authorized and ' regulated by statute. Under the statutes of the Unit- ed States, also, imposing forfeitures for violations of the customs and revenue laws, the proceedings are by way of in- formation, or of libel in the nature of an information. As a mode of criminal prosecution, informations are not com- mon in the United States, although au- thorized by law in cases of misdemeanors in many of the states ; the proceeding by indictment being ordinarily preferred. In form and substance, an information resembles in civil suits the biU, decla- ration, petition, or other pleading or proceeding whose place it supplies ; in criminal prosecutions, it resembles the indictment ; and in each class the sub- sequent proceedings are in the usual mode. A complaint exhibited before a justice of the peace by a tithing-man, for a breach of the Sabbath, Is not an information, within the common-law meaning of that term. Although In form and nature such a com- plaint may difEer but little from an infor- mation filed by the attorney-general, it does not come from the source which can give it that character; and it can only be called an information in the sense in which every accusation of one person by another to a magistrate is information to that magis- trate. Goddard v. State, 12 Conn. 448. InformatuB non sum. I am not instructed. See Non sum infokma- TUS. INFRA. Below; beneath; under; the opposite of supra. This word is used by writers as a means of reference to something subsequent in a book or ar- ticle. The meaning of intra, within, has also been attached to infra by law writers, although incorrectly. See Bur- rUl for a history of this corruption, The use of infra with that signification has become established, particularly in some of the expressions given below. Infra setatem. Under age; not of I age. Applied to minors. Infra annos nubiles. Under mar- riageable years ; not yet of marriageable age. Infra annum luctua. Within the year of mourning. See Annus luctus. Infra brachia. Within her arms. A term applied to a husband after consum- mation of the marriage, in reference to rights of the wife; as, anciently, her right to an appeal for his murder. Infra corpus oomitatus. Within the body of a county. This term is used in defining the limits of the jurisdiction of the English admiralty, which does not extend to waters within the body of a county. Infra dignitatem curiae. Beneath the dignity of the court. The subject of a suit in equity has sometimes been held so trivial, on demurrer for that cause, as to be infra dignitatem curice. Infra hospitium. Within the inn. This phrase is applied to the property of a guest, for the safe-keeping of which the innkeeper becomes responsible after it comes under his charge. Infra praesidia. Within the defences ; in a place of safe custody. This term is applied in international law to prop- erty captured and carried within the de- fences of the capturing power, out of any probable danger of recapture ; p*- ticularly to prizes brought completely within the power of the captors. Infra quatuor maria. Within the four seas ; within the kingdom of Eng- land; within the jurisdiction. Compare Beyond seas. INFRINGEMENT. Breaking; in- fraction; violation. INFRINGEMENT 606 INFRINGEMENT It is sometimes used of a violation of a law or regulation, but more often of a usurpation of a monopoly or exclusive right. Thus it has acquired a use which is almost technical, in reference to the law of copyrights, patents, and trade- marks; an infringement of either of these consists in making, selling, or using something which trespasses upon or violates the exclusive right which another has secured. Infrmgement of copyright. To show that one literary work may have been suggested by another, or that some parts or pages of it have resemblances, either in method, details, or illustrations, is not sufficient to establish infringement; the complainant must further show that such resemblances are so close, full, uni- form, and striking, as to lead to the conclusion that the one is a substantial copy of the other, or mainly borrowed from it. The question is, whether the work complained of is a servile, evasive imitation of the plaintiff's; whether it is substantially the same with the one copyrighted. Emerson v. Davies, 3 Stori/ C. Ct. 768, 787; 4 West. Law J. 261. And mere colorable variations intended to evade liability for infringe- ment will not destroy the identity of the two books. If a material part of the copyrighted publication is used, the al- leged piratical work, though it may be in some respects an improvement, is an infringement. Drury v. Ewing, 1 Bond, 540. The determination of the question of infringement varies somewhat with the nature of the work under consideration. In the case of a work of purely original authorship, much less imitation, similar- ity, or quotation can be tolerated than in works belonging to the class called compilations. Some similarities, and some use of prior works, even to the copying of small parts, are tolerated in such books as dictionaries, gazetteers, grammars, maps, arithmetics, almanacs, concordances, cyclopedias, itineraries, guide-books, and similar publications, if the main design and execution are in reality novel and improved, and not a mere cover for important piracies. In compiling such works, the materials of all, to a considerable extent, must be the same. Novelty and improvement can be substantial in scarcely any case, unless the matter is abridged, or a ma- terial change made in the arrangement, or more modern information is added, or errors are corrected, or omissions sup- plied. But while a prior compiler can- not monopolize what was not original with himself, and what must be nearly identical in all similar works on the same subject, a subsequent compiler cannot employ a prior arrangement and materials so much as amounts to a sub- stantial invasion of the former compila- tion. Webb V. Powers, 2 Woodb. Sj" M. 497, 512. A second compiler cannot use the labors of a previous compiler, animo furandi. He may work on the same original materials, but he cannot exclusively and evasively use those al- ready collected and embodied by the skill, industry, and expenditures of an- other. He may examine previous works, but must not take their substantial con- tents for the purpose of saving himself labor. Banks v. McDivitt, 13 Blatchf. 163. It is not a matter of importance upon the question of infringement in what form the works of another are used, whether by a simple reprint, or by incorporating the whole or large por- tions in some other work. Gray v. Rus- sell, 1 Story C. Ct. 11. The question to be decided is, whether defendant has used the plan, arrangements, and illus- trations of the previous work as the model of his own book, with colorable alterations and variations only, to dis- guise the use thereof, or whether his book is the result of his own labor, skill, and use of common materials and com- mon sources of knowledge, the resem- blances either being accidental or aris- ing from the nature of the subject. Lawrence v. Cupples, 9 Off. Gaz. Pat. 254. The question of the motive of defend- ant has not much to do with the ques- tion of infringement, except in balanced cases. If a comparison of the two works indicates clearly that the defendant, in the preparation of his work, has in fact made use of the plaintiff's to an extent unwarranted by law, the absence of an intent to violate the law will not relieve him from the consequences of his acts. INFRINGEMENT 607 INFRINGEMENT Driiry v. Ewing, 1 Bond, 540. If doubt- ful whether much of plaintiff's work has been copied, and whether the new work is a mere substitute, the intent not to pilfer from another, colorably or oth- erwise, the substantial parts of the new work, may be important. Webb v. Pow- ers, 2 Woodb. §• M. 497, 512. A fair abridgment of a copyrighted book is held not to be an infringement. What constitutes a fair abridgment is a question of difficulty, and does not ad- mit of decision by reference to general rules. It is said, however, that to keep ■within the privilege there must be a real, substantial condensation of the materi- als, and intellectual labor and judgment bestowed thereon, and not merely the facile use of the scissors, or extracts of the essential parts of the original work; for to copy certain passages from a book, omitting others, is in no just sense an abridgment, as the judgment is not ex- ercised in condensing the views of the author; his language is copied, not con- densed. See Abridgment. The question of infringement by mak- ing extracts from a work does not depend so much on the length of the extracts as upon their value. Extracts may be taken, to a reasonable extent, and for a purpose consistent with the plaintiff's rights, as where they are taken by a reviewer; but the privilege cannot be so exercised as to supersede the original book. Story v. Holcombe, 4 McLean, 306; Folsom v. Marsh, 2 Story, 100. A translation of a copyrighted book prepared in good faith as a means of bringing the ideas of the original work before the readers of another language is not an infringement, even though the author has previously made and copy- righted a translation into the same tongue. For copyright is the exclusive right to multiply " copies ; " now a translation is not a copy. Stowe o. Thomas, 2 Wall. Jr. 547; but see Rev. Stat. § 4952. To photograph an engraving has been held an infringement. Rossiter v. Hall, 5 Blatchf. 362. Infringement of patents. This sub- ject is governed by principles very anal- ogous to those which obtain with respect to copyrights; the decisions are, how- ever, much more numerous, and the law is settled in greater detail. As in respect to copyright, so as to patents, the question of infringement is not a ques- tion of motive or intent, so much as it is a question of effect or result. If the acts of the defendant do in fact deprive the plaintiff of his exclusive right, to his injmy, the defendant is not excused from compensatory damages, or an ac- counting, by the fact that he did not intend to impair, or even that he did not know of the patent-right. Parker V. Hulme, 7 West. Law J. 417; 1 Fish. 44; Hawes v. Washburne, 5 Off. Gaz. Pat. 491. But there should be an in- tent to do acts which deprive or tend to deprive the owner of the lawful rewards of his discovery. Sawin v. Guild, 1 Oall. 485. The making of a patented machine, merely for philosophical ex- periments, or for the purpose of ascer- taining the sufficiency of the machine to produce its described effects, is not an infringement of the right. Whittemore V. Cutter, 1 Gall. 429 ; Poppenhusen v. Falke, 2 Fish. Pat. Cos. 181. But the making of a patented machine, fit for use, and with a design to use it for profit, if in violation of the patent-right, is an infringement. Whittemore v. Cutter, 1 Gall. 429. In patent cases, the question of in- fringement usually hinges upon the identity or difference between the thing patented by the plaintiff and that made by the defendant. To constitute an in- fringement, the thing used by the de- fendant must be such as substantially to embody the patentee's mode of oper- ation, and thereby attain the same kind of result as was reached by his inven- tion. But the rule does not require that the defendant should employ the plain- tiff's invention to as good advantage as he employed it, or that the result should be precisely the same in degree, nor that the thing patented should be adopt- ed in every particular ; if the patent is adopted substantially by the defendant, he is guilty of an infringement. Winans V. Denmead, 15 How. 330 ; Root v. Ball, 4 McLean, 177 ; Alden v. Dewey, 1 Story C. Ct. 336. Under this head, the prom- inent consideration is, whether the mar chine used bv the defendant is substan- INFRINGEMENT 608 INFRINGEMENT tially, in its principle and mode of operation, like the plaintiEE's. If so, if the principle on which the machinery works is the same, and the effect is sim- ilar in hothi in contemplation of law the machines are identical, and the de- fendant is chargeable with infringe- ment. Odiome v. Winkley, 2 Gall. 51; Howe v. Abbott, 2 Story C. Ct. 190; Grant v. Mason, 1 Law Int. S/' Rev. 22; Parker v. Haworth, 4 McLean, 370; Brooks V. Bicknell, 3 Id. 250; 1 West. Law J. 150. The rules have become ele- mentary that the fact that defendant has made improvements upon or additions to the invention patented by plaintiff, gives him no right to use the plaintiff's invention ; but, in so far as he has made new and substantial improvements in the thing patented, he cannot be con- demned for the use of these improve- ments. A patent for an improvement embraces nothing more than the im- provement described and claimed as new, and any one who afterwards dis- covers a method of accomplishing the same object, substantially and essen- tially differing from the one described, has a right to use it. O'Reilly v. Morse, 15 Saw. 62, 119. If the plaintiff's in- vention be but an improvement on a known machine, he cannot treat another as an infringer who has improved the original machine by using a different form or combination, performing the same functions. McCormiok ». Talcott, 20 How. 402. An improvement in the principle of a machine is no invasion of the rights of the inventor and patentee of such machine ; otherwise, if it is only an improvement in the form. Beut- gen V. Kanowrs, 1 Wash. 168; Park v. Little, 3 Id. 196 ; Smith v. Pearce, 2 McLean, 176. What constitutes form, and what prin- ciple, is often a nice question to decide. The safest guide to accuracy in making the distinction is to ascertain what is the result to be obtained by the discov- ery; and whatever is essential to that object, independent of the mere form and proportions of the thing used for the purpose, may generally, if not uni- versally, be considered as the principle of the invention. Treadwell v. Bladen, 4 Wash. 703, 706; Gray v. James, Pet. C. Ct. 394; Olcott v. Hawkins, 2 Am. Law J. N. 8. 321. And where two machines operate in the same way, so as to pro- duce the same result, they are consid- ered as the same in principle, in decid- ing whether the later is an infringement of the earlier. It is an infringement to make and use a machine which may op- erate, if the owner is disposed to use it so, in the manner pointed out by the patent, Holbrook v. Small, 10 Off. Gaz. Pat. 508; and if a later machine pro- duces the same results as an earlier one, it is an infringement, notwithstanding it also produces other and different re- sults, N. Y. Rubber Co. v. Chaskel, 9 Off. Gaz. Pat. 923. On the other hand, if the later invention produces the de- sired result better than the earlier one, and has driven it out of the market, this is prima _/acie evidence that it is a new invention and no infringement. Smith V. Woodruff, 1 McArthur, 459; 6 Fish. Pat. Cas. 476. For, in order to consti- tute an infringement, it is not necessary that the arrangement and combination used by the party charged with infringe- ment should be the same to the eye as the patented invention. If they embody the ideas of the patentee, and the ma/- chinery of the defendant operates by such adoption and appropriation, then, though the arrangement may be appar- ently different, in reality and in judgment of law an infringement exists. Smith v. Higgins, 1 Fish. Pat. Cas. 537. Slight variations, changes in form merely, or the substitution of one mechanical ele- ment for another, do not relieve from the charge of infringement. Winans v. Denmead, 15 How. 330, 342; Wyeth v. Stone, 1 Story, 27 ii ; Sargeant v. Larned, 2 Curt. 340 ; Blanchard v. Beers, 2 Blatchf. 411 ; American Pin Co. v. Oak- viUe Co., 3 Id. 190; Sickels v. Borden, Id. 535; Dixon v. Moyer, 4 Wash. 68. Nor will a charge of infringement be avoided by making an unnecessary and useless addition to the invention. Pop- penheusen w. Falke, 5 Blatchf. 46. Va- riations in form have, however, excep- tional importance in those cases where form is of the essence of the invention. Where the patent under which the plaintiff claims was issued for a new combination of old parts, infringement INFRINGEMENT 609 INHABITANT is not shown unless the defendant has used all the elements of the combination ; if the defendant has used some of the parts only, omitting one or more, he has not used the combination, and there is no infringement. This rule is estab- lished by many decisions, and has be- come elementary. Upon the other hand, if the whole of a combination is taken, there is an infringement although'some- thing is added. Pitts v. Wemple, 6 Mc- Lean, 558. So substitution of mere equivalents for one or some of the ele- ments does not relieve from the charge of infringement. But where the com- bination as first patented proved useless, and another inventor, by adding to the combination another element, made the whole practically useful, it was held no infringement for him to make and use the whole. Robertson v. Hill, 4 Off. Gaz. Pat. 132; 6 Fish. Pat. Cos. 465. And the doctrine which forbids substitution of mere equivalents applies to chemical compositions equally with machines. Woodward v. Morrison, 5 Fish. Pat. Cas. 357 ; 2 Off. Gdz. Pat. 120. In respect to the employment of a specific or individual machine or article manufactured under a patent, the gen- eral rule is, that it is an article of prop- erty, and is subject to the ordinaiy laws of property in the hands of its proprie- tor. The patentee and those claiming under him have the exclusive right to make and to sell the thing covered by the patent. But when a machine or product has once been lawfully made and sold, it is no longer under the spe- cial protection of the patent laws. It is simply an item of propei-ty in the hands of its successive owners; and they may use it or dispose of it, substantially as they might use or dispose of property brought into existence in any other man- ner without infringing. Thus, if one has a right to a patented machine, and, to the use of it, he has a right to work it himself, or by his servants, or to lease it out to any ■other person. He may use it, repair it, improve it, &c., in the same manner as any other chattel belonging to him. So the sale of a thing manu- factured by a patented machine is no violation of the exclusive right to use, construct, or sell the machine itself. VOL. I. 39 The product cannot be reached except in the hands of some one in some manner connected with the use of the patented machine. Infringement of trade-marks. Trade- marks are now extensively protected by legislation and equitable remedies upon principles very analogous to copyrights and patents. See Tkade-mabks. But the term infringement, though appar- ently quite appropriate, does not seem to have come into much use. with re- spect to trade-marks. It is used in the English legislation, but not in the Unit- ed States law on the subject. INHABITANT. An indweller; one who has his abode, domicile, or resi- dence within a place. Inhabitancy : the condition of living within a place. The words are used with various shades of meaning, and the sense in- tended often depends on the context and attending circumstances. The fol- lowing are representative decisions upon various uses: A person may he an inhabitant without being a citizen, and a citizen may not be an inhabitant, though he retains his citizen- ship. Picquet v. Swan, 5 Mas. 35, 47. By inhabitant is meant one who has his domicile or fixed residence in a place, in opposition to one who is a mere sojourner. It by no means follows that an inhabitant is a subject or citizen; a foreigner perma- nently resident is as much an iniiabitant as if he were a citizen or subject. By the term inhabitants, in an act of congress au- thorizing the inhabitants of a territory to organize a state government, should be understood the mass of persons constituting the body politic. Such act does not af- fect the question of citizenship. One who temporarily visits the state cannot be deemed an inhabitant so as to be subject to tlie attachment la w ; nor does one who, having an establislied residence within the state, leaves it temporarily, cease thereby to be an inhabitant. Barnet's Case, 1 DaU. 153. While a man remains in the state, though avowing an intention to withdraw from it, he must be considered an inhabitant, and therefore not subject to a foreign attach- ment. Lyle V. Foreman, 1 Dall. 480. Inhabitancy is equivalent to residence, and means a fixed and permanent abode, or dwelling-place for the time being, as contrar distinguished from a mere temporary local- ity of existence. .Matter of Wrigley, 8 Wend. 134, 140. The words " inhabitant " and " resident " mean the same thing. An " inhabitant " or " resident " is a person coming into a place INHABITANT 610 INHABITANT with an intention to establish his domicile or permanent residence, and who in conse- quence actually resides there; engages a house or lodgings, and takes any steps pre- paratory to business, or in execution of this settled intention. Length of time is not so essential as the intent executed, by making or beginning the actual establishment, even though it is abandoned in a short or longer period. United States v. The Penelope, 2 Pet 24dm. 438, 450. "Inhabitant" and "resident" are used in the tax laws as conyertible terms. In making residence a test of taxability, the statute looks only to an actual inhabitancy for some permanent period and purpose, at a prescribed time. Bell v. Pierce, 48 Barb. 51. The terms " resident " and " inhabitant " are not synonymous; the latter implies a more fixed and permanent abode than the former, and frequently imports many privi- leges and duties to which a mere resident could not lay claim or be subject. Tazewell County V. Davenport, 40 III 197 ; s. p. Bart- lett V. City of New York, 5 Sandf. 44; Chaine ». Wilson, 1 Bosw. 673 ; Matter of Hawley, 1 Daly, 531. " Inhabitant " and " resident " should be construed in connection with the matter to which they are applied. In statutes de- signed to give creditors prompt remedies against absent debtors, it is just to consider the word resident as meaning an actual resident merely. In provisions relating, however, to testamentary cases, which de- pend upon the law of domicile, it is equally rational to construe the term otherwise; and under the N. Y. act of 1840 (Laws 1840, ch. 384, § 2), authorizing reception of for- eign probate of a will made by a non-resi- dent, one having' an actual residence abroad, but a domicile here, is not a non-resident. Isham V. Gibbons, 1 Bradf. 89. As used in that part of the Massachusetts constitution which confers authority on the general court to levy taxes upon all " the inhabitants of and persons resident and es- tates lying " within the commonwealth, the term residents has a broader meaning than inhabitants, and includes persons who have no permanent home in, and who are not strictly inhabitants of, the state. Lee .) of a dean, prebendary, &c., into possession of his stall or other seat of office, in the cathedral to which he has been appointed. In its more general sense, it seems to import some measure of public formality, like inauguration, q. V. A simple qualification of a func- tionary, by taking the oath of office, though it would operate to invest him with authority, would not be called in- stallation. INSTALMENT. 1. When a debt is divided into portions which are made payable at different times, these por- tions are called instalments. 2. The older books use instalment in the sense of installation, q. v. In dignities, possession is given by instal- ment ; in rectories and vicarages, by induc- tion, — without which no temporal rights INSTANCE 629 INSTITUTION accrue to the minister, though every eccle- Biastical power is reated in him by institu- tion. 2 Bl. Com. 312. iSrSTANCE COURT. One of the two divisions of admiralty courts. An "instance court" takes cognizance of contracts made and injuries committed on the high seas; a "prize court" has jurisdiction of prizes, &c. Percival v. Hickey, 18 Johns. 257. See Admiralty. INSTANTER. Instantly ; forthwith ; immediately; without delay; This Word does not, in practice, import entire ab- sence of delay or allowance of time. It is usually said to mean within twenty- four hours. Compare Forthwith. INSTITOR. A term in the civil law for an agent ; a person placed in charge of the property or business interests of another. INSTITUTES. Text-books, com- J)rising the established principles of jurisprudence, written out in a methodi- cal or comprehensive manner, have been sometimes styled Institutes ; examples are Justinian's Institutes of the civil law, Coke's Institutes of English law, Bouvier's Institutes of the municipal law in the United States. The term does not import any thing character- istically or definitely different from "Commentaries" or "Treatise." Institutes of G-aius, or Calus. This is believed to be the earliest systematic treatise on the Roman law, and to be the source and model of the much better known Institutes of Justinian. It was wholly lost in ancient times, and was un- known to jurists of the middle ages ; but in 1816 a copy was discovered which has been the foundation of several published editions. Institutes of Justinian. Elements of the Roman law, in four books, com- piled by the lawyers Tribonian, The- bphilus, and Drotheus, by order of the emperor Justinian. The work was pro- mulgated in the year 533, and in mod- ern times has been regarded as a leading compilation of the ancient civil law. See Corpus juris civilis. Since the dis- covery, however, of a copy of the Insti- tutes of Gains, it has appeared that the Institutes of Justinian are little more than a new edition of that work, omit- ting what had become obsolete, and including the new constitutions of Jus- tinian as far as they had then been issued. 1 Mackeld. Civ. Law, 56. The Institutes of Justinian are divided into four books, each book into several titles, and every title into several parts. The first is called principium, which is the beginning of the title ; and those which fol- low, paragraphs. The first book of the Institutes has twenty-six titles, the second twenty-five, the third thirty, and the fourth eighteen ; in all there are ninety-one titles. The division of subjects is triple, — into per- sons, things, and actions, under which heads the subject-matter of the foiu- books is com- prised. The first book, after two titles de- voted to preliminary explanations of jus- tice, law, and right, treats of the rights of persons; the second, third, and five first titles of the fourth, treat of things ; and actions are the subjects treated of from the sixth title of the fourth book to the end. Wharton. INSTITUTION. 1. In a general sense, commencement, establishment ; as the institution of a suit, the institu- tion of a ceremony or rule. 2. The rules and customs of a com- munity ; the peculiar methods and usages of the conduct of government are called the institutions of that people. 3. An organization or establishment for execution of some purpose of public concern, as an asylum or a college, is called an institution. By institution, in this sense, is understood a permanent establishment, fs contradistinguished from an enterprise of a temporary char- acter. City of Indianapolis v. Sturde- vant, 24 Ind. 391. 4. In ecclesiastical law, institution is an investiture of the spiritual authority and duties attached to a benefice, as in- duction {q. D.) is of the temporalities. It is the act of conferring upon a minis- ter the spiritual charge of a church or parish, by a service adapted to the occa- sion. In English ecclesiastical law, in- duction and institution are kept quite distinct ; in the usages of American Episcopalians, they are blended in one service. Staunton. 5. In the civil law, institution signifies the designation by an individual of an- other to be his heir. Institution, in ecclesiastical usage, is putting a clerk into possession of a spiritual benefice, previous to which the oaths against simony and of allegiance and supremacy are to be taken. It is a conveyance or com- mitment of the cure of souls from the bishop INSTRUMENT 630 INSURE to the incumbent, whereby the benefice be- comes filled. It is thus performed; the clerk kneels before the ordinary, or com- missary having a deputation for that pur- pose, whilst he reads the words of the in- stitution out of a written instrument, drawn for this purpose, with the episcopal seal appended, which the clerk holds in his hand during the ceremony. The act of presenta- tion only gives the clerk a right ad rem, but institution gives him a right in re, when he becomes parson as to the spirituality to celebrate divine service; and may enter on the parsonage house and glebe, and take the profits of the benefice, though he can- not grant, or let, or claim a freehold in them, or bring an action for them till in- duction. Wharton. INSTRUMENT. 1. This word is most frequently used to denote some- thing reduced to writing, as a means of evidence; or by elision for written in- strument. It is nomen generalissimum for bills, bonds, conveyances, leases, mortgages, promissory notes, wills, and the like; but scarcely includes accounts, letters in ordinary correspondence, memoranda, and similar writings, where the creation of evidence to bind the party, or the establishment of an obliga- tion or title, is not the primary motive. 2. It has also the more general sense of a means of accomplishing something; a thing useful in the execution of a pur- pose. Thus the expression instruments of evidence might be shown by the con- nection to include all "means of proof, witnesses as well as documents. Instrument of sasiue. An instrument in Scotland by which the delivery of "sasine" (i.e. seisin, or the feudal posses- sion of land) is attested. The form of this instrument is given in schedule B to Stat. 8 & 9 Vict. ch. 35, passed in 1845. It is sub- scribed by a notary in the presence of wit- nesses, and is executed in pursuance of a " precept of sasine," whereby the " granter of the deed " desires " any notary public to whom these presents may be presented " to give sasine to the intended grantee or grantees. It must be entered and recorded in the registers of sasines. Mozley Sf W. INSURE. To engage to indemnify a person against pecuniary loss from specified perils. Insurance: a contract to pay money to another, upon the oc- currence of a specified event, by way of indemnity for his loss thereby. Insurer : one who engages to pay an indemnity, on a destruction or loss of property, to a person damaged thereby. Insured, n.: a person who has obtained the engage- ment of another that the latter will pay an indemnity for any loss the former may sustain by injury or destruction of property in which he is interested. In- sured, adj. : applies to property which is the subject of such an engagement. Various classes or kinds of insurance are in use. Marine insurance applies to vessels, cargoes, and property exposed to maritime risks. Fire insurance covers buildings, merchandise, and other prop- erty on land exposed to injury by fire. Life insurance means the engagement to pay a stipulated sum upon the death of the insured, or of a third person in whose life the insm-ed has an interest, either whenever it occurs, or in case it occurs within a prescribed term. Acci- dent and health insurance include in- surances of persons against injury from accident, or expense and loss of time from disease. Many other forms might exist, and several others have been to a limited extent introduced in recent times; such as insurance of valuables against theft, insurance of the lives and good condition of domestic animals, in- surance of valuable plate-glass windows against breakage. Insurances are usually divided, accord- ing to the degree of risk contemplated, into common insurances, hazardous, and double or extra hazardous. See Hazar- dous. Insurance or assurance is a contract by which one party, in consideration of a premium, engages to indemnify another against a contingent loss. The party who pays the premium, and is to have the ad- vantage of the security, is called the insured or assured ; the party giving the security is termed the underwriter or insurer ; and the instrument is called a policy of insurance. Insurances are mainly of three kinds : 1. Marine insurances, which are in- surances of ship, goods, and freight, against the perils of the sea, and other dangers therein mentioned. 2. Fire insurances, which are insurances of a house or other property against loss by fire. 3. Life insurances, which are engage- ments to pay to the representatives of the assured, within a limited period from the date of his death, a specified sum of money, or to pay any such sum to the assured or his representatives, within a limited period of the death of some other person specified in the policy of assurance. In the former case, the assured is said to insure his own life ; in the latter case, he is said to insure the life of the person specified in the policy of assurance, who must be a person in INSURE 631 INSURE whose life the assured has an Interest. It may be added, that, by section 10 of the married women's property act, 1870 (33 & 34 Vict. ch. 93), a wife may effect a policy of insurance on her own or her husband's life, for her separate use. Mozley ^ W. ■rhere is this difference between life In- surance policies and all other kinds, that the latter are contracts of indemnity merely, and the moneys secured thereby cease to be payable if no damage arises ; but the former, if duly kept up until the death of the party assured, are payable at all events. Dalby V. India, &G. Life Assurance Co., 15 Com. B. 365. Insurable interest. Such a concern, right, or title in or to specific property as will sustain a contract to indemnify for its loss. An engagement to insure one who has no interest in the subject in- sured amounts merely to a wager upon its continued existence, and is, in gen- eral, void. The expression insurable interest does not involve title; an insurable interest in property may exist without either legal or equitable title to the property, Buck V. Chesapeake Ins. Co. , 1 Pet. 151 ; Carter «. Humboldt, &c. Ins. Co., 12 Iowa, 287 ; as in the case of insurances upon the right of a master to primage on freight, Pedriok v. Fisher, 1 Sprague, 565; upon the expectancy of payment to a mechanic for work already done upon a house, under a contract which post- pones payment until completion, Pro- tection Ins. Co. V. Hall, 15 B. Mon. 411 ; Franklin, &c. Ins. Co. v. Coates, 14 Md. 285. Many examples of insurances sus- tained upon an interest in property less than a title might be given. See U. S. Dig. tit. Insurance. And, in the case of life insurance, the idea of title is out of the question. Yet, to sustain an in- surance taken out by one person upon the life of another, the insurer must have some pecuniary interest in the life: it may be slight, but must be real; such as the interest which a husband and wife have in each other's lives; that which a creditor has in his debtor's life. In general, to constitute an insurable interest, there need not be a legal or equitable title to the property insured. If there is a right in or against the prop- erty, which some court will enforce upon the property, a right so closely connected with it, and so much dependent for value upon the continued existence of it alone, as that a loss of the propei-ty will cause pecuniary damage to the holder of the right against it, he has an insurable interest. Rohrback v. Germania Fire Ins. Co., 62 iV. F. 47, 54. Insurance agent. Companies engaged in the business of insurance conduct its details largely by aid of agents. These are known as general agents, or as local or sub agents, according as they have a general oversight of the companies' busi- ness in a state or region of ten-itory, or one employed in particular localities only, to receive applications and collect premiums. Insurance agent, in the internal revenue laws, is one who acts as agent of any fire, marine, life, mutual, or other insurance company or companies, or who negotiates or procures insurance for which he re- ceives any compensation. Act of July 13, 1866, § 9, 14 Stat, at L. 119. Insurance company. An associa- tion or company making it their busi- ness to enter into contracts of insur- ance. Two distinct kinds of companies have long been known. Mutual com- panies : in these the persons insured form the company, that is, each member con- tributes or engages to pay, whenever losses shall require, a sum to a general fund, and losses sustained by any mem- ber are paid out of this fund. Stock companies: in these, members contrib- ute a capital which is liable for losses of the insured, and the insured pay premi- ums which form the basis of divi- dends. Some companies combine the two methods. Until 1824, in England, firms and com- panies, with the exception of two chartered companies, were prohibited from taking ma- rine insurances. The prohibition was at that date removed, and the business of ma rine insurance placed on the same footing as other business, and many other companies have been formed. Besides individual in- demnities and companies, there are associa- tions formed by ship-owners, who agree, each entering his ships for a certain amount, to divide the losses between them. Such associations have long been known, but ap- pear to be on the decline since 1824. They appear to correspond with mutual insurance companies in America. Wharton. That friendly societies are not insurance companies within a covenant to efEect a policy with " some respectable insurance company," see Courtenay v. Courtenay, 3 /. 8r L. 519. Insurance policy. The documentor INSURGENT 632 INTEND form of writing by which contracts of insurance are ordinarily evidenced. The weight of authority is that a writing is not necessary, except, indeed, where the statute creating a corporation with power to make insurances confines them to written policies; but here the reason is in the charter restriction, not in any principle forbidding parol con- tracts of insurance. As far as the na- ture of the contract, or the general rules of insurance law, or the ordinary pro- visions of the statute of frauds, are con- cerned, the contract need not be written. If reduced to writing, however, as it usually is, the document has a well- settled character and features, and is called a policy. What are called gaming or wager poli- cies are policies attempted to be effected without the insured having an insurable interest in the subject-matter. These are void. Double insurance. This is where the insured effects a second insurance with another company or insurer, upon prop- erty already covered by insurance. General insurance. Gleneral insurance is where the perils insured against are such as the law would imply from the nature of the contract of marine insurance considered in itself, and supposing none to be ex- pressed in the policy. Special insurance is where, in addition to the implied perils, further perils are expressed in the policy ; and they may either be specified, or the in- surance may be against all perils. Van- denheuvel v. United Ins. Co., 2 Johns. Cos. 127, 150. Re-insurance. This is where an in- surer or company, having made insm-ance upon property, obtains a third party to insure his or their risk. It is to be carefully distinguished from double in- surance, being an insurance of an in- surer's risk. Upon the winding up of an insurance company, it is common for the managers or receiver to effect an insurance of all the risks of the company in some other company continuing business. The new company takes the place of the old one, in responsibility to the policy-holders, and the old one is practically released. This is re-insur- ance. INSURGENT. One who is concerned in an insurrection; one who rises in resistance to the government. INSURRECTION. A rising of sub- jects in resistance to their government. It does not seem to differ from rebellion, so much in having a distinct legal char- acter, as in that it presents the idea of a movement on a smaller scale, less ex- tensive territorially, or of briefer durar tion. It is a milder term than rebellion for a disturbance of the same general character and guilt. Title Mx. of the United States revised statutes regulates the steps to be taken by the president, when the use of the military power becomes necessary for the suppression of insurrection. INTEMPERANCE. Does not neces- sarily imply drunkenness. Thus an in- struction " that a person who is in the habit of drinking intoxicating liquors in- temperately is a person who is in the habit of getting intoxicated, within the meaning of the statute," is erroneous. MuUinix v. People, 76 ///. 211. INTEND. 1. To design, resolve, purpose. In this sense, the word de- notes a state of the mind beyond desire or wish, and this side of attempt or en- deavor. One intends to do an act when he not only chooses or prefers it, but also means to attempt it, without, how- ever, having yet done any act or made any movement towards it. 2. To apply a rule of law in the na- ture of presumption; to discern and fol- low the probabilities of like cases. Intended: designed, purposed; also presumed, imputed. Intending: de- signing, resolving; also presuming, im- puting. The words "intended to be recorded," used in a deed, in reference to a power of attorney, under which the deed purports to have been made, imply a covenant on the part of the grantor to procure the power to be recorded within a reasonable time. Penn v. Preston, 2 Bavile, 14. Intendment. Certain rules of judi- cial action which are founded on consid- erations of public policy, general con- venience, or the probabilities in like cases, without resting upon the circum- stances of the particular controversy, are called intendments. Thus it is said that, on an appeal, the intendments are in favor of the judgment under review; that, after verdict, intendments may be made in support of the judgment. So it is said to be an intendjnent of law INTENT 633 INTER that a man is innocent until proved guUty; that the courts will intend mar- riage rather than an illicit cohabitation. The term is very nearly equivalent to presumption. Intendment of law, is found, in old English law-books, used in the sense of the general policy or true meaning of law. INTENT; INTENTION. A de- sign, resolve, purpose. Intentional, intentionally: done with design or on purpose. In criminal law, an evil intent is, upon familiar principles, an essential element in offences, with, perhaps, some exceptions of criminal carelessness. For example, a child who is too young to entertain a criminal intent, a lunatic who is disabled from forming one, or a person acting under an honest misap- prehension of facts, as they have no criminal intent, are not punishable. This intent, however, is not necessarily a purpose to violate the law; that idea involves knowledge of the law, which is not necessary to criminality. What is to be inquired for is an intelligent pur- pose to do the act which violated the law. Intent, as used in the statute 13th of Elizabeth, declaring void conveyances made with intent to hinder creditors, refers to the tendency and natural effect of the deed, rather than to the grantor's actual motive. Whedbee v. Stewart, 40 Md. 414. " With intention," in an indictment, held equivalent to " with intent." State v. Tom, 2 Jones L. 414. " With an intent " and " for a purpose," are expressions almost absolutely identical in meaning. Commonwealth w. Eaymond, 97 Mass. 567. Intention, when used with reference to the construction of wills and other docu- ments, means the sense and meaning of it, as gathered from the words used therein. Parol evidence is not ordinarily admissible to explain this. When used with reference to civil and criminal responsibility, a per- son who contemplates any result as not un- likely to follow from a deliberate act of his own, he may be said to intend that result, whether he desire it or not. Thus, if a man should, for a wager, discharge a gun among a multitude of people, and any should be killed, he would be deemed guilty of intend- ing the death of such person ; for every man is presumed to intend the natural conse- quence of his own actions. Intention is often confounded with motive, as when we speak of a man's " good intentions." Moz- Uy Sr W. INTER. Among; between. A Latin preposition used in many phrases, among which are the following: Inter alia. Among other things. Inter alios. Between other persons ; between those who are strangers to a matter in question. A transaction be- tween such persons is termed res inter alios acta, q. v. Thus it is common to say that a judicial proceeding cannot affect a party before the court, because it was res inter alios acta. INTERCOMMONING. When the commons of two adjacent manors join, and the inhabitants of both have immemorially fed their cattle promiscuously on each other's common, this is called intercom- moning. Termes de la Ley ; Cowel; Jacob; Brown, INTERCOMMUNING. Letters of in- tercbmmuning were letters from the Scotch privy council passing (on their act) in the king's name, charging the lieges not to reset, supply, or intercommune with the persons thereby denounced ; or to furnish them with meat, drink, house, harbour, or any other thing useful or comfortable; or to have liny intercourse with them whatever, under pain of being repute art and part in their crimes, and dealt with accordingly; and de- siring all sheriffs, bailies, &c., to apprehend and commit such rebels to prison. Bell. Inter conjuges. Inter virum at uz- orem. Between husband and wife. Inter conjunotas personas. Between conjunct persons. By the act 1621, cap. 18, all conveyances or alienations between con- junct persons, unless granted for onerous causes, are declared, as in a question with creditors, to be null and of no avail. Con- junct persons are those standing in a cer- tain degree of relationship to each other, such, for example, as brothers, sisters, sons, uncles, &c. These were formerly excluded as witnesses, on account of their relation- ship; but this, as a ground of exclusion, has been abolished. Trayn. Max. Inter partes. Instruments in which two persons unite, each making convey- ance to, or engagement with, the other, are called papers inter partes — between parties — in distinction from those in which one party only does the act, makes the conveyance, &c., set forth, as in a deed poll, a will, a biU of sale, a promis- sory note. Inter regalia. Among the things be- longing to the sovereign. Among these are rights of salmon fishing, mines of gold and silver, forests, forfeitures, casualties of su- periority, &o., which are called regalia mi- nora, and may be conveyed to a subject. The regalia majora include the several branches of tlie royal prerogative, which INTERDICT 634 INTEREST are inseparable from the person of the sovereign. Trayn. Max. Inter rusticos. Among the illiterate. Inter se, or inter sese. Between them- selves. Inter vivos. Between the living; between living persons. This phrase is chiefly applied to gifts, to distinguish an ordinary gi£t from a gift made in contemplation of death, termed donatio mortis causa, q. v. The expression also distinguishes transfers of real estate by conveyance from devises. INTERDICT. 1. In the Roman law interdict was the name of a species of remedy, often said, somewhat loosely, to correspond to the modern injunction. Jacob ; Brown. In its principal form or use it did resemble injunction ; but the uses and scope of it varied at different periods. In early times, it seems to have been a simple prohibition, by the prcetor, ancillary to an action involving rights of possession, forbidding that either party should do any thing to affect the possession until the right had been determined. In the time of Gains, it had been developed into an extraordinary action, by which a summary decision of the right of possession might be obtained. It was employed in three forms, known as the prohibitory, the exhibitory, and the restitutory interdict. The first seems to have corresponded more nearly to the original form of the remedy ; it prohib- ited interference with the subject-matter in controversy, and operated much like the equitable remedy of injunction. The second called for an exhibition of ac- counts, like a modern decree for an accounting. The third was in the nature of a decree that a possession lost by force should be restored to the party. See Hunter's Rom. Law, 835. 2. In Scotch law, it is an order of the court of session or of an inferior court, pronounced, on cause shown, for stopping any act or proceedings complained of as illegal or wrongful. It may be resorted to as a remedy against any encroach- ment either on property or possession, and is a protection against any unlawful proceeding. Bell. 3. In ecclesiastical law, a censure prohibiting the administration of re- ligious ordinances and divine service. either to particular persons or within designated territorial limits. INTERDICTION. In French law, a person over twenty-one years of age, if he is in a habitual state of imbecility or in- sanity, may be excluded the management of his goods, upon the application of any of the relatives, or, they failing, on the appli- cation of the procureur du roi, to the court of first instance, who will thereupon direct an inquiry before the conseil dejamille. The interdiction may be either absolute or lim- ited : in the case of a limited interdiction, the party is able to act, with the approval of a consed judidaire. INTERESSE. Interest. The inter- est of money; also, an interest in lands. The word, in the latter sense, includes all estates, rights, and titles that one may have of, in, to, or out of lands. Interesse terinini. An interest in a tei-m. A right to the possession of a term at a future time, as distinguished from a term of which the lessee is in actual possession. It is that species of property or interest which a lessee for years acquires in the lands demised to him, before he has actually become pos- sessed of those lands; as distinguished from that property or interest vested in him by the demise, and also reduced into possession by an actual entry upon the lands and the assumption of owner- ship therein, and which is then termed an estate for years. Thus, where an estate for years in lands is granted to commence at a future period, the gran- tee, of course, cannot enter until that period has arrived ; but still he has ac- quired a kind of estate, or at least inter- est, in the lands ; and the estate or interest so acquired, and which he will con- tinue to have until the period at which the term is to commence shall arrive, and he shall have entered upon the pos- session of the lands, is simply an interesse termini. INTEREST. 1. A claim to advan- tage or benefit from a thing; any right in the nature of property, but less than title; a partial or undivided ' right ; a title to a share. In this sense, the word is used in a great variety of ways, and with many different shades of meaning. Its chirf use seems to designate some right at- taching to property which either cannot or need not be defined with precision; INTEREST 635 INTEREST hence it occurs in many connections where its meaning is vague, not from any peculiarity in the word, but because there was no certain, definite meaning to be expressed. In some connections, it seems to be used as including title, but as broader, and chosen because more comprehensive, as in the rules that ac- tions shall be brought in the name of the real party in interest, that contracts for sale of any interest in real property must be in writing. Sometimes it seems to mean advantages less than title, as in the expression that a lessee, before en- try, has no estate in the land, but only an interest in the term. Sometimes it is added to words of more definite mean- ing, apparently only by way of precaution that no conceivable claim shall be omitted, as in conveying all one's right, title, and interest. Sometimes it signifies an unde- fined share, as in saying that one has an interest in a business, that a master was promised an interest in the freights. Interest, in.one legal signification, means the estate or property which a man pos- sesses either in land or chattels, the quan- tum of which, of course, depends upon the title under which he holds, and which, therefore, varies in exact proportion to the different titles under which property can be held. Thus,, in land, a man may be possessed of a freehold interest, or of an interest less than freehold ; which main classification may again be divided into his interest in fee-simple, fee-tail, or for life, or his interest for a term of years, or at will. So, also, with regard to the interest or property in goods and chattels, it may be cither joint or several: joint, if shared with others (as with the part owners of a ship) ; several, if possessed by one person exclusively, or by more than one, their interests, however, not being in common. Brown. Interest, in a provision peculiarly worded, in a deed of settlement giving a wife power of appointment over the interest, rents, and profits conveyed by the deed, was held to mean estate, on the grounds that " rents and profits " sufficiently covered the idea of income ; that interest might as well mean estate or property as annual revenue ; and that, unless it were so construed in this deed, no provision was made for final dis- posal of the inheritance or fee. Ladd v. Ladd, 8 How. 10, 29. 2. A bias or inclination of mind, actual or presumable, founded upon a claim to advantage or liability to loss; some such relation to a matter in contro- versy as will give rise to a pecuniary gain or loss, from the event. There is a familiar use of the word to signify a favorable mental inclination, as in the expressions, a wife may be ex- pected to take an interest in her hus- band's business ; brokers are paid by commissions, to increase their interest in effecting sales. This, however, is a purely vernacular use of the term, and beyond the scope of this work. The technical sense now under consideration is a modification, perhaps, of this vernac- ular one, but involves the element, im- portant to be recognized, of prospect of gam or loss, as the reason of the mental inclination designated. When a witness is called incompetent from interest, or a judge or juror is pronounced disqualified because interested, the meaning does not include all kinds of bias, but a bias resting upon some peeuniai-y grounds, — some inclination which the law imputes to the individual on account of a proba- bility of gain or loss, and because such probability might in ordinary cases di- vert the action of the mind in testifying or deciding. Interest, in a statute that no witness shall be excluded by Interest in the event of the suit, means concern, advantage, good, share, portion, part, or participation. Fitch v. Bates, 11 Barb. 471. The fees which the law gives for the performance of ofiicial duties in relation to civil or criminal proceedings do not constitute an interest in the proceedings. They are regarded simply as an equiva- lent for the service performed. A magis- trate is not disqualified by interest to render a judicial decision because it will call for further official action, in which he will re- ceive official fees. Commonwealth v. Kee- nan, 97 Mass. 589. 3. A compensation, usually reckoned by percentage, for the loan, use, or for- bearance of money. The sum lent is called the principal, the sum agreed on as interest is called the rate per cent, and the principal and interest, added together, is called the amount. Interest is distinguished into simple and compound. Simple interest is that which is paid for the principal or sum lent, at a certain rate or allowance, made by law or agreement of parties. Com- pound interest is when the arrears of interest of one year are added to the principal, and the interest tor the fol- lowing year is calculated on that accu- INTEREST INTEREST mulation; in other words, interest upon interest. The amount of interest which may be taken is in most jurisdictions limited by- law. This limitation does not, however, enter into the meaning o£ the word; that is, the word interest does not nec- essarily import a lawful charge for use of money, a compensation within the rate allowed. It may extend to a charge beyond what is allowed. Such a charge is called excessive or unlawful interest, or usury, q. v. When a loan made to facilitate a mer- cantile adventure at sea is put at risk upon the event of the voyage, the lender is not restricted to the rate allowed upon loans made to be repaid absolutely, but, in view of his risk, is permitted to con- tract for a higher rate. See Fcenus natjticum; Marine interest. Interest on money is a certain profit for the use of a loan. Dry Dock Bank v. American Life Ins. & Trust Co., 3 N. Y. 344, 355. Interest is the premium allowed by law for the use of money. Gaar «. Louisville B. Co., 11 Bush, 180. In a bond to pay the "interest" of a fund for one's lifetime support, this word was construed in its usual sense of a com- pensation for the forbearance of money, and not otherwise to create a trust. Granger v. Pierce, 112 Mass. 244. Interest is an accessory or incident to principal. The principal is a fixed sum, the accessory is a constantly accruing one. The former is the basis on which the latter rests. Interest cannot, by mere implication of law, sustain the double character of ac- cessory and principal. After interest has accrued, the parties may, by their contract or acts, change its character to that of prin- cipal, and then interest upon it may com- mence to run. But it does not become principal so as to draw interest merely be- cause it has become due. In other words, interest is not compounded, except by agree- ment of parties. Doe v. Warren, 7 Me. 48. A promissory note for a certain sum with " annual interest " requires the payment of the interest annually. The expression de- scribes not merely the mode of computing the interest, but also the time of payment. Catlm V. Lyman, 16 Vt. 44. Two kinds of interest are known (to the laws of Spain) : judicial or legal, and con- ventional or customary. Judicial interest is a certain rate of interest established and declared by a general law of the country, to be computed from the time of a judicial demand, in all cases in which no express stipulation is made. Conventional interest is a certain rate of interest agreed upon by the parties, which may be more or less than the rate established by the general law of the country, according to the usage of the particular place, and regulated by the relative value of the sum loaned and the profits arising from the use. Miner v. Bank of Louisiana, 1 Mart. {La.) 20; Fowler v. Smith, '2 Col. 568. INTEREST REIPUBLIO.^. It benefits or concerns the republic ; it is for the advantage of the government or of the state. These words are the commence- ment of several maxims. Ordinarily, they do not relate particularly to repub- lics in the technical sense; of a form of government distinguished from a mon- archy or a democracy, but refer to the public interest, the general welfare, the state or commonwealth in the sense of the body politic and irrespective of dis- tinctions as to form of government. The meaning is not, " it is for the interest of a republic " as distinguished from other kinds of government that such and such things shall be done, but "it is for the general interest as represented by the government," whatever the form may be, and as distinguished from individual or private interests, that they shall be done. Interest reipublicee ut paz in reg- no conservetur, et quscunque pad adversentur provide declinentur. It benefits the state that peace be preserved in the kingdom, and that whatever things are adverse to peace be pru- dently declined. Interest reipublicse ne maleficia remaneant impunita. It concerns the state that crimes should not remain un- punished. Interest reipublicae quod homines oouserventur. It concerns the state that men be preserved. Interest reipublicee res judicatas non rescindi. It concerns the state that things adjudicated be not rescinded. Interest reipublicae suprema homl- num testamenta rata haberi. It con- cerns the state that men's last wills be confirmed. Interest reipublicee ut carceres Bint in tuto. It concerns the state that prisons be in security. Interest reipublicae ut quilibet re sua bene utatur. It concerns the state that every one uses his property properly. INTERFERENCE 637 INTERLOCUTORY Interest reipublicse ut sit finis li- tium. It concerns the state that there be an end of lawsuits. This maxim is often quoted, and has awide application. To this doctrine may be referred the principle of the limitation of actions, the statutes of set-off, which were en- acted to prevent the necessity of cross- actions, and the rule which forbids cir- cuity in legal proceedings; in accord- ance with which a court of law will endeavor to prevent cii'ouity and multi- plicity of suits, where the circumstances of the litigant parties are such that, on changing their relative positions of plaintiff and defendant, the recovery by each would be equal in amount. Carr D. Stephens, 9 Barn. §■ C. 758; Penny V. Innes, 1 Cromp. M. §• R. 439; Simp- son V. Swan, 3 Camp. 291. INTERFERENCE. This word is used in patent law in a technical sense, under the provision of Rev. Stat. § 4904, prescribing proceedings when- ever an application is made for a pat- ent which, in the opinion of the commis- sioner, would interfere with any pending application, or with any imexpired pat- ent. It is held that two patents inter- fere only when they claim, wholly or partially, the same invention. That is what constitutes an interference. Gold, &c. Separating Co. i;. United States Dis- integrating Ore Co., 6 Blatchf. 307; 3 Fish. Pat. Cas. 489. When an examination of an applicar tion for a patent discloses reason to be- lieve an interference is involved, the commissioner directs an investigation to be made, for the purpose of determining which of the claimants was the first to make the invention, or that portion of it from which the interference results. If the interference is between two appli- cations, a patent will be finally granted to him who is shown to be the first in- ventor, and will be denied, so far as the point thus controverted is concerned, to the other applicant. But if the inter- ference is between an application and a previous patent, all that can be done is, to grant or withhold from the applicant the patent he asks. There is no power in the patent office to cancel the existing patent. If the patent is granted, the two patentees will stand upon a footing of equality, and must settle their rights by a resort to the com-ts. In interference cases, each party is allowed to take the testimony of wit- nesses, in accordance with established rules. INTERIM. Meanwhile ; in the mean time. Interim curator, A person appointed by justices of the peace to take care of the property of a felon convict, until the ap- pointment by the crown of an administra- tor or administrators for the same purpose. (Stat. 33 & 34 Vicl. ch. 23, §§ 21-26 ; 4 Utepk. Com. 462; Cox Sr Sounder^ Cr. Law, 442- 445.) MozleySs-W. Interim order. An order to take ef- fect provisionally, or until fm'ther direc- tions. The expression is used especially with reference to orders given pending an appeal. Mozley Sf W. INTERLINEATION. The act of writing between the lines of an instru- ment; also, sometimes, whatever is written between lines. The word interlineation does not include an erasure. Didier v. Warner, 1 Code R. 42. INTERLOCUTORY. Done between the commencement of a suit and its final determination; incident to and during the progress of an action; that which decides, not the cause, but only some intervening matter relating to the cause. Mora v. Sun Mutual Ins. Co., 13 Abb. Pr. 304. See Final. The principal use of the term is in distin- guishing determinations which are not reviewable in a higher court, on appeal or error, from those which, being final, may be carried up for review ; and nu- merous cases upon what decisions are interlocutory are collected, U. S. Dig. tit. Appeal; Error. Interlocutory costs. Costs accru- ing upon proceedings in the intermedi- ate stages of a cause, as distinguished from final costs, such as the costs of motions. Interlocutory decree. A decree that is not final, and does not conclude the suit. It seldom happens in equity suits that the first decree can be final; for, if any matter of fact is strongly con- troverted, the court usually directs an inquiry in chambers to be made, after which the matter is to come on again for further consideration, and the final decree is therefore suspended until the result of such inquiry is made known. INTERLOCUTORY 638 INTERNATIONAL Such decree, contemplating and requir- ing further judicial action, is called in- terlocutory. Examples are: A decree intended to preserve the property in dispute, and to keep it with- in the control of the court until all the rights of the parties concerned can be passed upon, is interlocutory only. For- gay V. Conrad, 6 How. 201 ; McKim v. Thompson, 1 Bland, 150. A decree which declares the rights of the parties, and directs a reference, pre- liminary to ascertaining the amount for which the defendants will finally be held responsible, Kane v. Whittick, 8 Wend. 219; decrees directing foreclo- sure, a partition, a sale, or a resale, but involving a necessity for a confir- mation, or decree of distribution, &c., in the future, McMurtry v. Glasscock, 20 Mo. 432; Cork v. Knickerbocker, 11 Ind. 230; Hunter v. Miller, Id. 356; Carr v. Hoxie, 13 Pet. 460; Clifton v. Livor, 24 Ga. 91'; Demaray i>. Little, 17 Mich. 386; Gudgell v. Mead, 8 Mo. 53; Allen V. Belches, 2 Hen. ^ M. 595. Interlocutory judgment. In prac- tice according to the course of the com- mon law, or in civil actions brought in ■the states which have adopted codes of reformed procedure, " interlocutory " is applied to a judgment that is not final, but which is given upon some plea, pro- ceeding, or default occurring in the course of the action, and which does not termi- nate the suit. In common-law practice, the term includes judgments on demur- rer, or on verdict for the defendant on certain dilatory pleas called pleas in abatement, those which are given when, although the right of the plaintiff in the action is established, yet the amount of damages he has sustained is not ascer- tained, which cannot be done without the intervention of the jury. This hap- pens when the defendant in an action suffers judgment by default, or confes- sion, or upon a demurrer, in any of which cases, if the demand sued for be damages, and not a specific sum, then a j ury must be called to assess them ; there- fore, the judgment given by the court previous to such assessment by the jury is interlocutory and not final, because the court knows not what damages the plaintiff has sustained. In practice under the codes, as the jurisdiction ex- ercised by judgment includes both equi- table and legal suits, the phrase interloc- utory judgment is substantially coex- tensive with its sense in both law and equity practice, strictly so called. Interlocutory order. An interlocu- tory order is an order made during the progress of a suit upon some incidental matter which arises out of the proceed- ings ; an order made upon a point where- by some right or principle is established in the cause on which a final decree de- pends, or which determines or directs some matter or thing which is necessary to the making of the final order or de- cree. The term is applied in all branches of practice, common law, equity, and admiralty, and under the state codes. INTERMEDDLE. An injunction order, forbidding the defendant to intermed- dle with property, means to meddle with it improperly ; to do something to or with it that may affect injuriously the plaintiff's rights in the action. It does not mean that the defendant shall not take care of or pro- tect such property. McQueen v. Babcock, 41 Barb. 337. INTERN. Has been recently used, as a transitive verb, in the sense of to restrict or shut up a person, as a politi- cal prisoner, within a limited territory. Thus to intern within a city corresponds with to imprison in a building. INTERNATIONAL LAW. The law of nations ; that system of rules rec- ognized by common consent among civ- ilized peoples, by which subjects of com- mon concern, such as the effect to be given by one to the laws of another; the conflict of laws of different sovereign- ties ; the rights of commerce upon the high seas; the rights of emigration and asylum, and the return of fugitives ; the conservation of peace; the obligations of neutrality ; the conduct of war ; and effect of captures and conquests, — are adjudicated. The different states of Christendom are combined by religious faith, by civ- ilization, by science and art, by conven- tions, and by usages nv ideas of right having the moral force of law, into a community of nations, each politically sovereign and independent of the other, but all admitting much interchange of legal rights or duties. In their mutual INTERPLEADER 639 INTERPRET intercourse, the nations recognize, and more or less obey, certain rules of right, partly natural and partly conventional, which oblige their consciences and con- trol their actions, in war as well as in peace, and which constitute the law of nations. This law of nations is subdi- vided into two great parts : one, which treats of the reciprocal duties and rights of nations personified, and in their public relaiion as nations ; and another, which treats of the duties and rights of each nation in its relation to individuals of another nation. As respects the United States, this law of nations, although not specially adopted by the constitution, or any municipal act, is deemed essentially a part of the law of the land. 1 Op. Att.-Gen. 27; 7 Id. 18; Id. 229. International law is divided into two branches : public international law, which comprises the rights and duties of sovereign states towards each other ; and private international law, which comprises the rights and duties of the subjects of different states to- wards each other, and is mainly con- versant with questions as to the particu- lar law governing doubtful cases. Mot- ley §• W. ; Field's Draft Code, § 8. Of the questions between a sovereign state and citizens of another state, some are generally reckoned as belonging to one of these branches and some to the other. Thus the question of capturing contrar band goods would be deemed to belong to public international law, but the question how far legacy duty is payable by a foreigner would be deemed to be- long to private international law. The place of many of such questions is diffi- cult of assignment. INTERPLEADER. The name of a remedy allowed where the right to some subject-matter is in controversy between two claimants, while the thing itself is in the possession of a third person who makes no claim to it, and has no other interest in it than to deliver it to the true owner, and be protected against the claims of the competitor. The older books speak of interpleader as if it were incidental and peculiar to the action of detinue. But it has long been extensively used as an equitable remedy, and is best known in that as- pect. By statute in" England it has been extended in courts of law. A bill of interpleader lies where two or more persons severally claim the same thing under different titles or in separate interests from one another, who, not claim- ing any title or interest therein himself, and not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. Under these circum- stances, he may apply to a court of equity to be protected, not only from being com- pelled to pay or deliver the fund or thing claimed to both the claimants, but also from the vexation attending upon the suits which may be instituted against him. Gib- son V. Goldthwaite, 7 Ala. 281 ; 2 Story Eq. 112; 1 Smith Eq. Pr. iQ?,. The appropriate allegations in a bill of interpleader are, that two or more persons have preferred a claim against complainant ; that they claim the same thing ; that the complainant has no beneficial interest in the thing claimed; that he cannot determine, without hazard to himself, to which of the defendants the thing of right belongs. Atkinson v. Monks, 1 Cow. 691. INTERPRET. To ascertain the meaning of language; to translate orally from one tongue to another. Interpretation: the art or act of ascer- taining the meaning of language, or of expressing its meaning in another tongue. Interpreter: one who restates the testimony of a witness testifying in a foreign tongue, to the court and jury, in their language. The words " interpretation " and " construction " are used interchange- ably by many law writers, but some au- thorities warrant a distinction. Dr. Lieber (Leg. §• Pol. Hermen.) de- fines interpretation as the art of finding out the true sense of any form of words ; that is, the sense which their author in- tended. Professor Parsons (2 Contr. 491, note a) says that interpretation properly precedes construction, but it does not go beyond the written text. Rutherforth (2 ' Im^t. 314) defines in- terpretation as consisting in finding out or collecting the intention of a writer, either from his words or from other con- jectures, or from both. And he divides it into three sorts : literal, which is where we collect the intention from the words used only; rational, where the words do not express his intention perfectly, but INTERPRET 640 INTERSECTION either exceed it or fall short of it, so that we are to collect it from probable or rational conjectures only; and mixed, where the words, although they do ex- press his intention when they are rightly understood, yet are in themselves of doubtful meaning, and we are forced to have recourse to conjectures to find out in what sense they are used. This doc- trine seems to use " rational interpreta- tion" in substantially the same sense as the " construction " of Dr. Lieber's definition. The rules of interpretation or con- struction, whichever term is employed to designate the process of determining the effect of language in a written in- strument, vary materially with the na- ture of the document. Simple agreements. When these are to be interpreted, the lawful, honest intent in which the parties probably united is the leading guide ; and to ascertain this, the courts enquire for and consider all the attendant circumstances, the known desires of the parties in making the con- tract, the usages of the business in which they were dealing, and the legal conditions; but discard any testimony of the oral negotiations ; these are deemed merged in the writing, and any declara- tion by either party (or of the draughts- man) as to what he individually meant. But the intent sought for is not the ac- tual design of the author of the writing, unqualifiedly. Specialties. Many of the sealed in- struments, and particularly conveyances of land are subject to technical rules governing the interpretation of particu- lar words, which the courts wiU not re- lax, merely because tlie parties may have intended something different from the technical signification. A deed is not treated as subject to the rule of giving effect to the intent, in the same degree as a simple contract. Negotiable instruments. As these are framed in established forms, for the ex- press purpose of being sold from hand to hand in commerce, they are liable to be enforced, in favor of remote purchas- ers, according to the commercial meaning of the words, rather than the maker's intention. Wilts. In the elucidation of these. the doctrine of giving effect to the ac- tual intent is can-ied very far. Interpre- tation is little else than ascertaining what the testator in fact designed. Judgments, and statutes. In the inter- pretation of these there must be much qualification of the doctrine. The foregoing remarks are made with sole reference to explaining words by means of others in the same tongue. Interpret and interpretation ai'e ^Iso used in law proceedings in the vernac- ular sense of translate and translation, meaning, to set forth the sense of words of a foreign tongue in equivalents of our own; and interpreter is almost al- ways used in this signification. INTERREGNUM. A vacancy in the government, or in the highest official position or supreme head of a govern- ment; the period during which such a vacancy exists. INTERROGATORIES. Formal in- quiries or questions, exhibited in writ- ing, for the judicial examination of a party or witness. Direct or original interrogatories are those which are put on behalf of the party calling a witness. Cross interrog- atories are those which are interposed by the adverse party. Interrogatories are customarily em- ployed in several judicial proceedings. A bill in equity looking towards a dis- covery is accompanied by interrogatories which the defendant must answer under oath. In proceedings for a contempt, one of the first and fundamental steps is to propound interrogatories to the persoi\ accused, to elicit precisely what acts supposed to be in contempt he has really done, and what were the attend- ing circumstances, and his actual motive ; and his answers to these may relieve him of the charge. The examination of a witness taken out of court upon a commission is conducted by means of interrogatories, prepared by the parties, settled by the court, and annexed to the commission as a guide to the officer taking the examination. INTERSECTION. The point of in- tersection of two roads is the point where their middle lines intersect. Springfield Road, 73 Pa. St. 127 ; compare Pittsburg V. Cluley, 74 Id. 259; Falls v. Keis, Id. 439. INTERVENE 641 INTRUSION INTERVENE. To put forward a defence, in a suit to which one has not been made a party, of one's interest in the subject-matter. Intervener or inter- vener: one who, not being made a party in a suit in which he is interested, ap- piles to be heard in it, as to his interest. Intervening or intervention: the actor practice of applying to come in and de- fend a suit in which the applicant is not a party. INTESTATE. Without a will. The word is used both as an adjective and as a noun. Thus a person is said to die intestate when he dies without making a will, or dies without leaving any thing to testify what his wishes were with respect to the disposal of his property after his death; also the person him- self who has died without a will is meant. Thus, in speaking of the prop- erty of a person who has thus died, it is common to say the intestate's property; i.e., the property of the. person dying in an intestate condition. Hence intestate is both the opposite to testator, the lat- ter word signifying a man who dies hav- ing made a will; and to testate, which means having made a will. INTOXICATE. Generally relates to the use of strong drink. Intoxicated, used without words of qualification, signifies a condition produced by drinking intoxicat- ing spirituous liquor, and is equivalent to drunk. No additional word is needed to convey this idea. It is sometimes said that a person is intoxicated with opium, or with ether, or with laughing-gas ; but this is an unusual or forced use of the word. A complaint under a statute authorizing proceedings against persons found intoxi- cated, which avers that defendant was found intoxicated, is in this respect suffi- cient, and need not allege upon what he be- came so. State V. Kelley, 47 Vt. 294. INTOXICATING LIQUORS. Those the use of which is ordinarily or commonly attended with entire or partial intoxication. People V. Zeiger, 6 Park. Or. 355. The terms intoxicating liquor and spiritu- ous liquor are not synonymous. All spiritu- ous liquor is intoxicating, but all intoxicat- ing liquor is not spirituous. Permented liquor, though intoxicating, is not spiritu- ous, because not distilled. Commonwealth V. Grey, 2 Gray, 501; Commonwealth v. Livermore, 4 Id. 18. A statute amending a previous statute prohibiting the sale of spiritous liquors, by striking out the word "spiritous" where- ever it occurs, and substituting " intoxicat- ing," does not operate (with respect to pend- VOL. I. 41 ing prosecutions) as an implied repeal of the earlier law. The later act is not re- pugnant to the former ; but the two may well stand together For the term intoxi- cating liquors includes a larger class than "spiritous liquors." The two expressions bear the relation to each other of genus and species ; all spiritous liquors are in- toxicating, but all intoxicating liquors are not spiritous. Hence although " spiritous " is stricken out of the statute, yet if "in- toxicating" is simultaneously substituted, there is no moment of time when selling spiritous liquors is not prohibited. Com- monwealth V. Herrick, 6 Gush. 465. INTRA. Within; in; near. Sevei-al phrases which in classical Latin are introduced by this preposition, by the usage of modern law writers be- gin with the preposition infra; as to which phrases see that word. INTRUSION. Is used in a technical sense to denote the wrong of taking pos- session of real property by one who has no color of title, to the prejudice of the tenant next in remainder or reversion. Intruder: the person who thus takes possession.* Blackstone (3 Com. 169) ranks intru- sion as a species of injury by ouster, or amotion of possession from the freehold, and states it to be the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion. It happens, he says, where a tenant for a term of life dies seised of lands and tenements, and a stranger en- ters thereon, after such death of the tenant, and before any entry of him in remainder or reversion. The difference between intrusion and abatement he states to be that an abatement is al- ways to the prejudice of the heir or immediate devisee ; an intrusion is al- ways to the prejudice of him in remain- der or reversion : so that an intrusion is always immediately consequent upon the determination of a particular estate ; an abatement is always consequent upon the descent or devise of an estate in fee- simple. According to Termes de la Ley, the word is also applied to copyholds, when a stranger enters or intmdes before the reversioner or remainder-man, after the determination of the particular copyhold estate. In England, former laws allowed a writ of intrusion as a special remedy to INVALID 642 INVENTORY restore possession to the rightful owner; but this writ has been abolished by Stat. 3 & 4 Wm. IV. ch. 57. Stephens says (3 Crnn. 669) that in- trusion is also used to designate trespass committed on the lands of the crown; as by entering thereon without title, holding over after a lease is at an end, &c. For this the remedy is by an in- formation of intrusion in the court of exchequer. A defendant in possession of land under a deed claiming legal right to the posses- sion of the premises in good faith cannot be ejected therefrom as an intruder. Eussel V. Chambers, 43 Ga. 478. INVALID. Not of binding force or legal ef&cacy ; lacking in authority or obligation. See Valid. INVASION. The entry of a country by a public enemy, making war. INVENT. To contrive, devise, or plan, by original thought and experi- ment, and independent of any pre-exist- ent example, some machine, composi- tion, design, improvement," or other article or thing. Invented: applies to a thing thus devised by an original men- tal process, and independent of any pre- vious example of the same kind. In- vention : the process of thought and experiment by which some new machine, composition, or design, &c., is brought into existence. Also, the thing thus originated anew is called an invention. Inventor : a person who, by original thought and experiment, contrives or devises some new article or thing. To constitute a person an inventor under the patent laws, the mental oper- ation of devising the thing to be pat- ented must be substantially that of his own mind; but he may have collateral and subordinate aid from the minds of others in evolving and completing what he has himself conceived. He must himself have conceived the idea ; but this does not exclude all right to make use of the knowledge, or even the sug- gestions, of other persons. Inquiries made, or information or advice received from men of science, in the course of an inventor's researches, will not impair his right to the character of an inven- tor. It makes no difference whether an inventor derives his information from books, or from conversation with men skilled in science. Although he is aided by the suggestions of others in arriving at the useful result, yet if, after all the suggestions, there was something left for him to devise and work out by his own skill and ingenuity, he is still to be regarded as the first and original inven- tor. But if the suggestions and com- munications of others go to make up a complete and perfect machine, embody- ing all that is embraced in the patent subsequently issued to the party to whom the suggestions were made; or if one person suggests an idea as to an inven- tion, which is indispensable to its oper- ation, and which in reality constitutes its whole value, and another adopts such suggestion and takes out a patent there- for, — the patent is void, as not being for the invention of the patentee. Again, the fact that a mechanic or workman employed by one who has devised the idea of a new invention, to make experiments, construct machin- ery or models, or otherwise to aid in reducing the idea to practice, has sug- gested improvements in the plan, will not deprive the inventor of the merit of the invention, nor affect the validity of the patent, if they are embraced within it. If an inventor furnishes the idea to produce the result, he is entitled to avail himself of the mechanical skill of others to carry out his contrivance in practice. Persons employed, as well as employers, are entitled to their own in- dependent inventions ; but where the employer has conceived the plan of an invention, and is engaged in experi- ments to perfect it, no suggestions from an employe, not amounting to a new method or arrangement which in itself is a complete invention, is sufficient to deprive the employer of the exclusive property in the perfected improvement. See the cases collected U. S. Dig. tit. Patents, or .466. Nat. Dig. tit. Patents. As to what is an invention, see Discov- ery. INVENTORY. A list, schedule, or VTritten enumeration of ai-ticles of prop- erty, in an orderly form, and particular- izing the several articles. Such lists are made for various pur- poses. The most important use of them is in connection with the administration INVEST 643 INVOICE of the estates of deceased persons. The laws regulating this subject require the executor or administrator, at the outset, to make an inventory of the assets be- longing to the estate. He is charged ■with the appraised value of the property shown by this inventory, which charge is reduced and extinguished by credits successively allowed him for payments made of debts, legacies, and distributive shares. The practice of making these inven- tories is said to be derived from the di- rections of the Institutes of Justinian. According to the early Roman law, the heii' was chargeable with all the debts of the ancestor. But, by the legislation of Justinian, an heir, exhibiting a true inventory of the deceased's goods coming to his hand, was chargeable no further than to the value of the inventory. This was called " benefit of inventory." In common parlance, &o., the term inventory is applied on other occasions, involving a valuation of goods. Accounts of the goods sold are often called inven- tories ; the accounts taken by sheriffs of goods levied and sold under execution, under disti-ess of goods for rent, &c., are called inventories. The bankrupt laws of the United States require the debtor, at an early stage of the proceeding, to make and file a sworn inventory of his Inventory does not materially differ, in nature, from invoice; unless, perhaps, the latter implies that prices or valua- tions are stated more strongly than does the former. But invoice is a term be- tween merchants, and denotes a list such as is used in commercial dealings, while inventory signifies a list prepared for some proceeding under judicial cogniz- ance. INVEST. 1. To give possession; to put into possession ; to put one in pos- session of a fee, estate, or office newly acquired; to clothe with possession; to clothe possession with the solemnities of law. 2. To lay out money or capital in some permanent form so as to produce an income. It Is rather a forced use of the term in- vest to apply it to an active capital em- ployed in banking; tiie word is usually applied to a more inactive and permanent disposition of funds. People v. Utica Ins. Co., 15 Johns. 358, 384. The term invest is broad enough to cover the loaning of money, but does not restrict to that mode of investment. Shoemaker v. Smith, 37 Ind. 122. A power to an insurance company, to invest the money paid in upon subscrip- tions to the stock, does not involve banking powers. Scott v. Depeyster, I Edw. 513. That a power to invest in public stocks or other securities includes power to discount commercial paper by way of loan, but a power to invest in stocks only does not, see Duncan v. Maryland Savings Inst., 10 GiU ^ J. 299; N. Y. Kre Ins. Co. v. Ely, 2 Cow. 678. A sum is invested within a statute that non-reeidents shall be taxed on all sums invested in any manner in business within the state, whenever its amount is repre- sented by any thing but money. People V. Commissioners of Taxes, 23 N. Y. 242, 244. A wife's separate property being sold, a part of the proceeds was loaned by her husband, who took the borrower's note, payable to the wife ; and the wife made a general deposit in bank of another part. It was held that both sums were "secured" and " invested " in her name, within a stat- ute protecting the wife's title to proceeds of her separate estate, if secured or invested in her name. Promissory notes arc securi- ties. A general deposit of money in bank is a loan to the bank ; and money loaned is invested in a debt against the borrower, whether or not written evidence of the debt is taken. Jennings v. Davis, 31 Conn. 134. INVESTIGATION. Denotes inquiry either by observation, experiment, or dis- cussion. Wright V. Chicago, 48 ///. 285. INVESTITURE. A ceremony which accompanied the grant of lands in the feudal ages, and consisted in the open and notorious delivery of possession in the pres- ence of the other vassals, which perpetu- ated among them the cera of their new acquisition at the time when the art of writing was very little known ; and thus the evidence of the property was reposed in the memory of the neighborhood, who, in case of disputed title, were afterwards called upon to decide upon it. Brown. Invito domino. The owner being un- willing; against the will of the owner; without the owner's consent. This phrase is frequently used, in criminal law, in discussions of the law of larceny, to constitute which crime the property must be taken invito domino. INVOICE. An account, list, or writ- ten statement of goods or merchandise, indicating nature, quality, quantity, and prices of the several articles, such as is usually furnished between mer- IPSE 644 IRRELEVANT chants, on a sale or consignment of goods. Invoice does not carry any necessary im- plication of ownersliip. An invoice usually accompanies goods that are consigned to a factor for sale, as well as in the case of a purchaser. Rolker v. Great Western Ins. Co., 4 Abb. App. Dec. 76. Invoice price, of goods, means the prime cost. Le Roy v. United Ins. Co., 7 Johns. 343. IPSE. Inflexions of this Latin pro- noun are used in one or two law phrases to intensify the expression or identify strongly the thing spoken of. Ipsissimis verbis. In the very same words ; in the identical words. Ipso facto. By the fact itself; by the mere fact. By the mere effect of an act or a fact, without any other act or proceeding. The expression is used where a trans- fer or forfeiture of property by mere operation of law is declared; and the m.eaning is, that it shall not be necessary to declare such transfer of forfeiture in a court of law, but that, by the very oc- currence of the fact designated or doing of the act prohibited, the change shall be thereby instantly and completely op- erative. Thus, where the same person obtains two or more church preferments with cure, not qualified by dispensation, &c., the first living is void ipso facto, viz., without any declaratory sentence. An estate or lease may be ipso facto void by condition, &c. Estates and property have been vested in trustees, &c. , by act of parliament, ipso facto, without con- veyance. Thus it is said that the prop- erty of the suitors in the court of chan- cery, standing in the name of the ac- countant-general, vests in his successor, ipso facto, by the very act of his appoint- ment, without any conveyance from the preceding accountant-general or his rep- resentatives. Ipso jure. By the law itself; by op- eration of law merely. IRREGULAR. Not according to rule ; improper or insufiicient, by reason of departure from the prescribed com-se. Irregularity: a departing from the law- ful course of proceedings; also, a step taken or thing done contrary to rule. The words import objection or fault: they are not applied to departures from rule which are wholly immaterial, but to those which caiTy iU consequences in rendering the proceeding defective, void- able, &o. But they do not impute crime or moral wrong. Matters mala in se are not properly to be styled irregular; neither is an unwise exercise of discre- tion, or an injudicious step in matters not governed by a rule. Their chief ap- plication is to steps taken in the course of judicial proceedings or in the admin- istration of business, which should be conducted according to an established routine. Irregular deposit. A strict name for that kind of deposit where the thing deposited need not be returned. See Dkposjit. Irregular process. Sometimes the term irregular process has been defined to mean process absolutely void, and not merely er- roneous and voidable; but usually it has been applied to all process not issued in strict conformity with the law, whether the defect appears upon the face of the pro- cess, or by reference to extrinsic facts, and whether such defects render the process ab- solutely void or only voidable. Cooper v. Barter, 2 Ind. 252. Irregularity is the technical term for every defect in practical proceedings, or the mode of conducting an action or de- fence, as distinguishable from defects in pleadings. 3 Chitt. Gen. Pr. 509. Irregularity, in the sense of a departure from rule or neglect of legal formalities, is most frequently, though not exclusively, applied to such departure, neglect, or infor- mality as does not afiect the validity of the act done. Thus an irregular distress is not now vitiated, so as to make the distrainor a trespasser ab initio, and so to render all his proceedings illegal from the first; but, if distress is made for rent justly due, any subsequent irregularity will do no more than give an action for damages to the party grieved, and not even that, if tender of amends is made before action brought. Stat. 11 Geo. IL ch. 19, § 19. Mozlen Sr W. In the canon law, irregularity is used for an impediment to the taking holy orders ; as where a man is base-born, notoriously defamed of any crime, maimed, or much deformed in body, &c. Tomlins. IRRELEVANT. Not material to an issue. Irrelevancy: the want of any adaptation to assist in the determination of an issue. Irrelevancy, in an answer, consists in statements which are not material to the decision of the case ; such as do not form or tender any material issue. People v, McCumber, 18 N. Y. 315, 321. Irrelevant designates matter in a plead- IRREPARABLE 645 ISSUE ing which has no sutstantial relation to the controTersy in suit, rabbricotti v. Laun- itz, 8 Sandf. 743 ; Seward v. Miller, 6 How. Pr. 312. It is equivalent to impertinent, and in- cludes " scandalous " matter in a pleading. Carpenter v. West, 5 How. Pr. 53. A denial of material matter, though in- sufficient in form, cannot be deemed an ir- relevant or sham answer or plea. Seward V. Miller, 6 How. Pr. 312; Morton v. Jack- son, 2 Minn. 219. IRREPARABLE INJURY. Does not mean such injury as is beyond the pos- sibility of repair, or beyond possible com- pensation in damages, or necessarily great damage, but includes an injury, whether great or small, which ought not to be sub- mitted to on the one hand, or inflicted on the other; and which, because it is so large or so small, or is of such constant and fre- quent occurrence, cannot receive reason- able redress in a court of law. Wahle v. Eeinbach, 76 lU. 322. Irreparable injury includes wrongs of a repeated and continuing character, or which occasion damages that are estimated only by conjecture, and not by any accurate standard. Johnson v. Kier, 3 Pittsb. 204. IRRESISTIBLE FORCE. This term is used to denote an interposition of human agency, which, from its na- ture and power is absolutely uncontrol- lable, such as inroads of a hostile army, piracy, or robbery by force, &c. Story Bailm. §§ 25, 28. This may excuse non-delivery by a carrier or other bailee. Compare Act OF God; Inevitable Accident. IRREVOCABLE. Not subject to be recalled ; not open to change at the will of the party. Thus a power of attorney is held to be irrevocable by the principal when it is coupled with an interest or granted for a consideration. A will is, in gen- eral, revocable; but one made in pursu- ance of a valid contract or settlement re- quiring the party to make it may be irrevocable. ISSUABLE. That which permits an issue to be framed. Issuable plea. A plea such that the adverse party can join issue upon it and go to trial; a plea to the merits. A de- murrable plea is not issuable. A party is sometimes ordered by the court to plead issuably; which means, to interpose an issuable plea. Issuable terms. Hilary and Trinity terms were called, under former Eng, lish practice, the issuable terms, be- cause in them issues were made up for the assizes. The distinction is obsolete since the judicature acts. 3 Bl. Com. 85-3; Wharton. ISSUE, n. 1. Offspring; lineal de- scendants ; all persons descended from a common ancestor. In this sense, the word includes not only a child or chil- dren, but all other descendants in what- ever degree ; and it is so construed gen- erally in deeds. But, when used in wills, it is, of course, subject to the rule of construction that the intention of the testator, as ascertained from the ■will, is- to have effect, rather than the technical meaning of the language used by him ; and hence issue may, in such a connec- tion, be restricted to children, or to de- scendants living at the death of the tes- tator, where such an intention clearly appears. Under the same rale, the word, when occurring in a devise, is con- strued either as a word of purchase or of limitation, as may best answer the in- tention of the testator; but in a deed it is always taken as a word*' of purchase ; and, when jised as a word of purchase, in either a deed or will, it is synony- mous and coextensive with the term de- scendants, and includes all persons who answer that description. 2 Washb. Real Prop. 604. The distinction between the employment of the term as a word of pTirchase and as a word of limitation is important chiefly with reference to the application of the principle known as the rule in Shelley's case. Where an estate is given to one person for life, and by the same act or instrument the remainder is limited to his issue, the term issue is technically construed as a word of purchase, not a mere word of limitation, and the rule in Shelley's case does not apply; but if, as it may be in a devise, the term be consti'ued as merely a word of limitation, like heirs, the rule applies, and the entire estate becomes vested in the first taker. See Shelley's case ; and compare Child ; Heir. Another occasion for the construction of the word arises in cases of executory devises , limited over upon a person's ' ' dy- ing without issue," or " dying without having issue," or upon a " failure of ISSUE 646 ISSUE issue," of such person, &o. In such a connection, the word was formerly taken in its largest sense as including all de- scendants, however indefinite or remote, unless explanatory words were added defining the time to which the contin- gency should apply. As the contin- gency of a general failure of issue might not occur for many generations, such a devise was deemed too remote to be valid within the rule prohibiting per- petuities. But, under later statutes and decisions, the word issue in such devises is restricted to mean issue at the death of the first taker; and the phrases above mentioned are not now usually deemed to import a general or indefi- nite failure of issue. Compare Dying WITHOUT childrbn; Failure of is- sue. Issue, in its usual sense, comprehends all issue to the latest time. Maxwell v. Call, &o., 2 Brock. 119. Issue includes all offspring or descend- ants. Henderson v. Womack, 6 Led. Eq. 437. Issue is more comprehensive than chil- dren, and embraces all one's lineal descend- ants indefinitely. Holland v. Adams, 3 Gray, 188. • if not qualified or explained, issue may be construed to include grandchildren as well as children. Adams v. Law, 17 How. 417, 421. Standing uncontrolled by the context, the word issue is synonymous with de- scendants. Weehawken JFerry Co.. v. Sis- son, 17 N. J. Eq. 475. In a statute regulating descent, in event of death leaving issue, the word issue is not restricted to " children," but extends to all lineal descendants however remote. Den Rodman v. Smith, 2 N. J. L. 7. Issue, used in a will as descriptive of dev- isees, &c., includes those only who are of the blood of testator, and not those who are connected by marriage. Barnes v. Greenzebaeh, 1 Edw. 41. In a deed, the term issue is universally a word of purchase, and synonymous with " descendants." But the term may be, and often is, in wills, construed as meaning cliil- dren, where such appears to be the inten- tion of the testator. Such intention must, however, be gathered from the instrument itself. Price v. Sisson, 13 N. J. Eq. 168, 178. In a will, the word issue is not a techni- cal expression, implying prima facie words of limitation, but will yield to the intention of the testator, to be collected from the words ef the will. In a deed or grant it is otherwise. McPherson v. Snowden, 19 Md. 197. Issue, in wills and deeds of settlement, may be construed to include grandchildren. Ingraham v. Meade, 3 Wall. Jr. 32. The term issue, in a will, means, prima fade, the same as " heirs of the body," and, in general, is to be construed as a word of limitation ; but this construction will give way if there be on the face of the in- strument sufficient to show that the words were intended to have a less extended meaning, and to be applied only to children or to descendants of a particular class. Taylor v. Taylor, 63 Pa. St. 481 ; Kleppner V. Laverty, 70 Pa. St. 70. Issue, used in a will, prima facie means heirs of the body, and, in the absence of ex- planatory words showing it was used in a restricted sense, is a word of limitation. Eobins v. Quinliven, 79 Pa. St. 333. Where the word issue is used in a will in relation to the interests of a son and three daughters of the testator, and as to the daughters it is clear, from other pro- visions of the same will, that children liv- ing at their deaths are meant, the same meaning must be given to it in regard to the son. Gibson v. Gibson; 4 Jones L. 425. In a marriage settlement, where the pur- pose is to provide a jointure, and not to make a settlement on the issue of the mar- riage, in a limitation to the children of the marriage, contingent upon the event that the wife depart this life in the lifetime of the husband, leaving issue of the said mar- riage, one or more children then living, the word issue, as explained by the subsequent words, does not include grandchildren. Adams v. Law, 17 How. 417. The rule in Shelley's case only applies to a limitation of a remainder to the heirs, or heirs of the body, of the first taker ; and not to an estate for life, with remainder to the issue of thedevisee who may be living at the time of her death. The term issue, in such a devise, is a word of purchase, not of limitation. Cushney v. Henry, 4 Paige, 345. Used without modifying words in a de- vise, by which the ancestor takes a free- hold, issue is a word of limitation. Kings- land V. Eapelye, 3 Edw. 1. The words, dying without issue, used in a devise, in reference to freehold estates, are to be construed as meaning an indefi- nite failure of issue, unless there is some- thing in the context which manifestly con- fines the sense to a definite period. Wil- lis V. Bucher, 3 Wash. C. Ct. 369. The words, without issue, in a will, when applied to dispositions of real estate, ex vi termini mean an indefinite failure of issue, if there be nothing in the will restricting it to a failure at the time of the death of the first devisee, or to some other time or event. Newton v. Griffith, 1 Har. Ip G. 111. To have no issue, to die having no is- sue, and to die without issue, are techni- cally and judicially convertible terms. lb. Where a remainder shall be limited to take effect on the death of any person with- out heirs, or heirs of his body, or without ISSUE 647 ISSUE Issue, the word " heirs " or " issue " shall be construed to mean heirs or issue living at the death of the person named as ancestor. 1 N. Y. Bev. Stat. 724, § 22. When in a devise will be deemed used as a word of purchase and not of limi- tation. See Timanus v. Durgan, 46 Md. 402. When it will be construed as meaning " heirs." See Thomas v. Higgins, 47 Md. 439. 2. In pleading, an issue or ' the issue is a meeting of the parties, in their pleadings, upon a distinct matter to be judicially determiiijed; a point or ques- tion in dispute between the parties to an action, eliminated by their pleadings, in proper form for trial. An issue arises upon the pleadings when an allegation of fact or a conclusion of law is main- tained by one party and controverted by the other. An issue of fact is one which arises upon a denial of an averment of matter of fact, and presents a question of fact for determination upon evidence ; an issue of law arises upon a demurrer, and involves the question of law as to the sufficiency of the pleading demurred to. As to Fbigned issue and General ISSUE, — see those titles. Issue has different significations in law ; it means the progeny begotten between a man and his wife ; the profits arising from amerciaments and fines; or the profits of lands and tenements ; but it most generally signifies the question of law or fact arising out of the allegations and pleas of the pur- suer and defender in a cause. When, in the course of pleading, one party makes an averment which his op- ponent denies, the parties are said to be at issue. Jacob ; BeU. The word issue is often used as a nomen collectivum, and the phrase issue joined may embrace various distinct grounds of defence. Pointer v. Kust, 7 Humph. 532. The phrase, issues of fact, in N. C. Const, art. 11, § 18, providing for a waiver of jury trial in all issues of fact joined, includes not only such issues as are made by the pleadings, but also those arising in a com- pulsory reference, and similar ancillary pro- ceedings. State V. Brown, 70 N. C. 27; Keener v. Finger, Id. 35. Issue is the disputed point or question to which the parties in an action have nar- rowed their several allegations, and upon which they are desirous of obtaining the decision of the proper tribunal. When the plaintiff and defendant have arrived at some specific point or matter affirmed on the one side and denied on the other, they are said to be at issue {ad cxitum, i. e., at the end or result of their pleadings) ; the question so set apart is called the issue, and is designated, according to its nature, as an issue in fact, or an issue in law. If it is an issue in fact, it is almost uni- versally tried by a jury of twelve men; if an issue in law, by the judges of the land constituting the court in which the action has been brought. (Steph. Plead. 25.) Hoithouse; Brown, 3. The act of emitting, sending out, or causing to go forth; the giving a thing its inception; the first delivery; as the issue of an order from a com- manding officer of or from a court ; the issue of money. Issue, as used in reference to bank-notes, relates exclusively to the moneyed currency of the country. Curtis v. Leavitt, 17 Barb. 309, 341. 4. The whole quantity of instruments or securities put forth at one time; a class or series; as in the expression, all the bonds of that issue were payable in coin. 5. Issues (j>lu.) is used for the rents and profits of real property, especially in the phrase rents, issues, and profits. Issue frequently signifies fines or amer- ciaments levied upon a person who has been guilty of some default. Thus the fines to the king levied out of tlie issues and profits of sheriff's lands, by reason of their having been guilty of some negligence or default, are so termed. So the goods of a defendant which have been distrained under a writ of distringas, in order to compel his appearance to the action, are termed "i«sue." (Graves v. Stokes, 1 Taunt. 415; 2 Lil. Abr. 89.) Rolthouse. ISSUE, V. To send out; deliver by authority; emit; put in circulation; as to issue orders from an officer, money from the treasury, notes from a bank, or process from a court. In questions as to the power of making certain alterations on the terms of a bill or note, it is of importance to determine whether or not it has been issued. A bill or note is issued as soon as it is in the hands of a person entitled to enforce pay- ment, whether it has been given in exchange for a cross-acceptance, or for any other value, and whether the payee and holder is the drawer or a third party. But it is not issued unless it is in the hands of the payee or other holder, when drawn in favor of a third party, or if it is made payable to the drawer, unless it has been accepted or indorsed by the drawer. In England, an accommodation bill, which, though both accepted and indorsed, was deposited in the ITA 648 JACTUS hands of an agent for behoof of all parties, was held not to be fully issued till it had been given to a third party. Bell. A process may be said to he " issued," when it is made out and placed in the hands of a person authorized to serve it, and with a bona fide intent to have it served. Mills V. Corbett, 8 How. Pr. 500. For the distinction between " paying out " notes, and " issuing " them as money, — see United States v. Kay, 2 Cranch C. Ct. 141; People v. Wells, 8 Mkh. 104. ITA. So; thus. This word commences several Latin phrases, among which are the follow- ing: Ita est. So it is. In countries where the civil law prevails, after the decease of a notaiy, the officer who is authorized to make official copies of his notarial acts from his register adds to such a copy, instead of the notary's signature, which is required during his life, the words ita est. Ita lex scripta est. So the law is written. An expression sometimes used to imply that the law must be obeyed, notwithstanding the hardship which may result from its operation. Ita quod. So that; so as. These words were formerly used in deeds in Latin to introduce a condition; they are still occasionally employed as a name for a conditional provision. The condi- tion in a submission to arbitration ("so as the award be made of and upon the premises " is an ordinary form) is like- wise termed the ita quod. Ita. te Dens adjuvet. So help you God. The form, in Latin, of administer- ing an oath. ITEM. Also; likewise; again. This word was formerly much used in writ- ten instruments, particularly in wills, to mark the beginning of a new paragi-aph or division after the first; the first being usually introduced by the word imprimis, q. V. From this use of the word is derived the common application of it to denote a separate or distinct particular of an accouut or bill. Item is a usual word in a will to intro- duce new, distinct matter. The word " also," when used in a will to point out the beginning of a new devise or a new he- quest, imports no more than " item." In such a connection it is of the same signifi- cation as "moreover." It cannot be con- strued to mean "in like manner," with reference to a preceding clause, or as im- plying any dependence upon such preced- ing clause of what foUows. Hopewell u. Ackland, 1 Scdk. 239. J. JACTITATION. Assertions re- peated to the prejudice of another's right; false boasting. The term designates a wrong which, in certain aspects, is cognizable under the canon law, in the ecclesiastical courts. The wrong known in the common law as slander of title is in its nature a species of jactitation, and the Louisiana code allowed an action of jactitation to protect the ownership of lands from dis- turbance by slander of title. Jactitation of marriage, is the boast- ing or giving out by a party that he or she is married to some other, whereby a common reputation of a marriage be- tween them may ensue. To defeat that result, the person may be put to a proof of the actual marriage, failing which proof, she or he is put to silence about it. Jactitation of a right to a church sitting, appears to be the boasting by a man that he has a right or title to a pew or sitting in a church to which he has legally no title. Jactitation of tithes, is the boastijig by a man that he is entitled to certain tithes to which he has legally no title. JACTUS. Throwing. Ja<:tua lapilli. The throwing down of a stone. One of the modes, under the civil law, of interrupting prescription. Where one person was building on another's ground, and in this way acquiring a right by vsu- capio, the true owner challenged the intru- JAIL 649 JEOFAIL Bion and interrupted the prescriptive right by throwing down one of the stones of tlie building before witnesses called for the pur- poses. Trayn. Max. Jactus mercium navis levandse causa. The throwing of goods into the sea for the purpose of lightening the ship ; jettison. Where a ship, either through perils of the sea, or other cause, has been disabled from performing her voyage in safety, and goods are thrown overboard to insure the safety of the ship and remainder of the cargo, the loss thus sustained has to be borne by the owners of the ship and cargo, pro rata. Trayn. Max. JAIL. A species of prison ; a build- ing designated by law, or regularly used by the sherifl, for the confinement of persons held in lawful custody. Jailer : the keeper of a jail. The old spelling of this word was gaol, and the law dictionaries give a prefer- ence to this form ; but in late years the orthography " jail " is more common. Gaol is a strong place or house for keep- ing of debtors, &c., and wherein a man is re- strained of his liberty to answer an offence done against the laws. Every county hath two gaols ; one for debtors, which may be any house where the sheriff pleases ; the other for the peace and matters of the crown, which is the county gaol. Jacob. Jail delivery. In this connection " jail" is used in its earlier or stricter sense of a place of provisional confine- ment, or for keeping one in custody for purposes of some judicial inquiry. An- ciently, a special writ of jail delivery was issued for each prisoner; but after- wards a general commission, embracing allf risoners collectively, was substituted as more convenient. The commission, by force of the word general, purports to require a disposition to be made of all persons imprisoned ; but the require- ment is complied with either by an ac- quittal resulting in the discharge of the prisoner, or in a conviction resulting in a sentence to permanent imprisonment in punishment. Either of these takes him out of " jail; " that is, out of pro- visional confinement. The phrase does not import that all persons in confine- ment shall be set at liberty. It was in reference to this authority that the full and formal name of the higher criminal courts was made "courts of oyer and terminer and general jail delivery." The administration of justice being orig- inally in the crown, in former times our kings in person rode through the re^lm once in seven years, to judge of and deter- mine crimes and offences ; afterwards, jus- tices in eyre were appointed ; and since, jas- tiees of assise and gaol delivery, &c, A commission of a gaol delivery is a patent in nature of a letter from the king to cer- tain persons, appointing them his justices, or two or three of them, and authorizing them to deliver his gaol, at such a place, of the prisoners in it; for which purpose, it commands them to meet at such a place at the time they themselves shall appoint ; and informs them that for the same purpose the king hath commanded his sheriff of the same county to bring all the prisoners of the gaol, and their attachments, before them at the day appointed. Jacob. Jail liberties, or limits. One of the instigations of imprisonment for debt consisted in designating a convenient space or region around the jail within which an imprisoned debtor who would give bond that he would not escape be- yond was allowed to go at large. This limited region of liberty for prisoners is called the jail limits, or jail liber- ties. "Prison bounds" and "rules of the prison" are equivalent expres- sions. JEOFAIL. An error, mistake, or oversight. The word is a corruption oij'ai faille, I have failed (Jacob) , and was the old law French forniula for a pleader's ac- knowledgment of an error, on applying for leave to amend. The earlier statutes giving liberty of correcting errors in pleadings were called statutes of jeo- fails; and this term at length became a general one for statutes allowing amend- ments. Jeofaile is, when the parties to any suit in pleading have proceeded so far that they have joined issue, which shall be tried or is tried by a jury or inquest; and this pleading or issue is so badly pleaded or joined, that it will be error if they proceed ; then some of the said parties may, by their counsel, show it to the court, as well after verdict given and before judgment, as be- fore the jury is charged. And the counsel shall say " tliis inquest ye ought not to take ; " and if it ' be after verdict, then he may say " to judgment you ought not to go." And because such niceties occa- sioned many delays in suits, divers stat- utes are made to redress them Termes de, la Ley. In our practice, however, the privi- lege of amending has been greatly en-. JEOPARDY 650 JEOPARDY larged by provisions incorporated in the general acts and codes regulating pro- cedure, and these have superseded the special acts of this nature formerly im- portant. JEOPARDY. Danger ; peril. The act of congress of March 3, 1825, § 22, Kev. Stat. 5472, prescribed addi- tional punishment for any person who, in robbing the mail, shaLL put the life of the carrier in jeopardy by the use of dangerous weapons. It has been held 'that this includes exhibiting weapons calculated to take life, and obtaining possession of the mail by threatening the carrier with them. Putting the car- rier in fear, and his life in peril or danger, is putting his life in jeopardy. Jeopardy means the same as peril or danger. The ofier or threat to use dangerous weapons, then exhibited, thereby putting the carrier in a well- grounded fear for his life, is enough to constitute jeopardy: it is not neces- sary that a wound should be given of a character to endanger life. If the car- rier's life was in danger, or if he really believed it to be so, the robbery was committed by putting his life in jeop- ardy. United States v. Wilson, Baldw. 78, 93. The constitution of the United States provides that no person shall be subject for the same offence to be twice put in jeopardy of life or limb ; and most of the state constitutions or statutes con- tain provisions to like effect. See citations, Sedgw. Constr. (2d ed.) 572, note. They have led to many decisions as to when a second trial is forbidden or may be allowed; and among these are several which turn upon the mean- ing of the term jeopardy. A person once placed upon his trial be- fore a competent court and jury, charged with his case upon a valid indictment, is in jeopardy, in the sense of the constitution, unless such jury be discharged without rendering a verdict, from a legal necessity, or from cause beyond the control of the court, such as death, sickness, or insanity of some one of the jury, the prisoner, or the court, or by consent of the prisoner. Peo- ple V. "Webb, 38 Cal. 467. When a person is placed on trial upon a valid indictment, before a competent court and a jury, hS is put in jeopardy; and the discharge of the jury without verdict, un- less by consent of the defendant, or from some unavoidable accident or necessity, is equivalent to an acquittal. Among these unavoidable necessities are the inability of the jury to agree after a reasonable time for deliberation ; also the close of the term of the court. Exp. McLaughlin, 41 Cal. 211; People v. Cage, 48 lb. 824. If a person is indicted for manslaughter, and, on his trial, the court, without the con- sent of the defendant, discharges the jury upon the ground that the evidence shows that the defendant is guilty of murder, the defendant has been put in jeopardy. He cannot be again indicted for murder for the same killing, but is entitled to an acquittal. People V. Hunckeler, 48 Cal. 831. Whenever a person has been given in charge, on a legal indictment, to a regular jury, and that jury is unnecessarily dis- charged, he has been once put in jeopardy, and the discharge is equivalent to a verdict of acquittal. Wright v. State, 5 Ind. 290; McCorkle v. State, 14 Id. 39 ; s. p. Heikes V. Commonwealth, 26 Pa. St. 513 ; United States V. Shoemaker, 2 McLean, 114. Where a valid indictment has been re- turned by a competent grand jury to a court having jurisdiction, the defendant has been arraigned and pleaded, a jury been impanelled, sworn, and charged with the case, and all the preliminary things of rec- ord are ready for the trial, the jeopardy has attached, and, tmless the defendant waives his constitutional right, or unfore- seen circumstances withdraw from him the benefit of the privilege, any subsequent lapse or error in the proceedings of the court will entitle him to be discharged from custody. Morgan v. State, 13 Ind. 215. A person is in jeopardy when put upon trial under an indictment not defective; and the discharge of the jury without abso- lute necessity will sustain a plea of autrefois acquit. O'Brian v. Commonwealth, 9 Bush, 333. A man is not put in jeopardy by the im- panelling and swearing of a jury by inad- vertence, when it was dismissed bef ord he is arraigned or answers to the indictment. United States v. Eiley, 5 Blatchf. 204. Where, after a trial is commenced, the judge withdraws, and the trial is completed by another judge, and the judgment is re- versed for that cause, the prisoner cannot be said to have been in jeopardy, and he may be tried again. State v. Abram, 4 Ala. 272. A person tried before a judge sitting at an unauthorized special term of his court cannot be said to be put in jeopardy, as the proceedings are coram non judice, and void. Dunn V. State, 2 Ark. 229. One who has not been put on his trial on the merits in a court of competent jurisdic- tion has not legally been put in jeopardy. State V. Cheek, 25 Ark. 206. An indictment vmder which the accused could not be convicted, whether by reason of a variance between the proof and the indictment, or of some defect in the latter. JETSAM 651 JOINT does not put him in jeopardy j and the dis- charge of sueh an indictment on motion of the prosecutor, or even a verdict of acquit- tal, will not be a bar to another indictment and trial for the same offence. People v. McNealy, 17 Cal. 332 ; State v. Stebben8,29 Cmn. 463 ; Mount v. Commonwealth, 2 Duv, 93; Commonwealth ». Curtis, Thach. Cr. Cos. 202; People o. Barrett, l.Tohns. 66. The jeopardy contemplated by the con- stitutional provision that no person shall be put in jeopardy twice for the same of- fence, does not begin until a petit jury has been sworn and charged. H the jury is discharged on account of the illness or death of a juror, or of the judge, or because the term of the court has expired, the pris- oner has not been in jeopardy, and may again be put upon trial. State v. Nelson, 26 Ind. 366. The accused is not put in jeopardy by an indictment dismissed by the prosecuting attorney with the presumed consent of the court, even after a jury has been sworn to try the case. Wilson v. Commonwealth, 3 Bush, 105 ; S. p. Walton v. State, 3 Sneed, 687. A defendant in a criminal case is not put in jeopardy until a verdict has been rendered. Hence, while the discharge of a juror, against the objection of the prisoner, after the jury is sworn, operates as a dis- charge of the entire jury, it does not oper- ate as an acquittal, or bar another trial. O'Brian v. Commonwealth, 6 Bush, 663. After a quashal for misnomer, a reindict- ment for the same offence does not put in second jeopardy. Commonwealth v. Far- rell, 105 Mass. 189. JETSAM. See Flotsam. JEWEL. By " jewels " are meant or- naments of the person, such as ear-rings, pearls, diamonds, &c., which are prepared to be worn. Cavendish v. Cavendish, Brown Ch. 467. A watch and chain are not a jewel or or- nament, for the loss of which, under the New York statute, an innkeeper is not liable. Bernstein v. Sweeney, 33 N. Y. Superior Ct. 271. A watch is neither a jewel nor an orna- ment, as these words are used and under- stood, either in common parlance or by lex- icographers. It is not used or carried as a jewel or ornament, but as an article of ordinary wear by most travellers, and of daily and hourly use by all. Eamaley v. Leland, 43 N. Y. 539. Je-welry, in Mass. St. 1820, ch. 45, pro- hibiting peddling jewelry without a license, is employed as a generic term of the largest import ; it includes personal ornaments of plain gold, although not containing gems. Commonwealth v. Stephens, 14 Pick. 370. JOHN DOE. The name generally given to the fictitious plaintiff in an action of ejectment, brought according to strict forms of the old practice. JOINDER. Coupling; uniting. It occurs in several technical phrases. Joinder of actions, or causes of actions. This expression signifies the uniting of two or more demands or rights in action in one action; the state- ment of more than one cause of action in a declaration. Joinder of counties. There can be no joinder of counties for the finding of an indictment; though, in appeal of death, where a wound was given in one county, and the party died in another, the jury were to be returned jointly from each county, before the Stat. 2 & 3 Edw. VI. oh. 24 ; but by that statute the law is al- tered, for now the whole may be tried either on indictment or appeal, in the county wherein the death is. Jacob. Joinder in demurrer. When a de- fendant in an action demurs to the dec- laration, this tenders an issue of law, and the plaintiff, if he means to main- tain his action, must accept this issue; and this acceptance of the defendant's tender, signified to the plaintiff in a set form of words, is called joinder in de- murrer. Joinder of issue. In common law pleading, when the pleadings in an ac- tion reach such a stage that either party- traverses or denies the facts pleaded by his antagonist, and the latter, instead of seeking to avoid their effect, or pleading any new matter to rebut them, simply accepts the issue thus tendered, this is called joinder of issue, or joining issue. Joinder of offences. In criminal practice, more offences than one may sometimes be embraced in and prosecut- ed under one indictment, vf hich is called joinder of the offences. Joinder of parties, i.e. of plaintiffs or defendants. The uniting of two or more persons as co-plaintiffs or as co- defendants in one suit. This subject is of more importance in equity practice; but the expression is also somevrhat used in reference to actions at law. JOINT. Combined; united; done by or against, or shared between, two or more persons in union. Jointly: com- binedly; unitedly. Joint occurs in sev- eral teciinical phrases. S~(^<^i^ / /? J^^ Joint and several. The obligations founded upon contract are either joint, in ■which all the joint parties, upon the one side or the other, are together JOINT 652 JOINT bound, but not separately, and neither one can be held to a liability without the other; or they are several, in which each individual is liable, independent of and separately from his associates ; or they are joint and several,, in which the creditor party may, at his option, pro- ceed against one or all of the debtors. Thus a joint and several bond may be put in suit either against all the obligors, or against either one separately, at the option of the obligee. The words jointly and severally, in a bond, must be construed distributively, so as to apply as well to the obligors as to their heirs. " We bind ourselves," makes them joint obligators ; " we bind our heirs, executors, and administrators," binds them jointly ; and " we bind each and every of them," binds them severally. Mitchell v. Darricott, 3 Brev. 145. Joint action, or suit. An action or suit brought by two or more persons. Joint administrators, executors, or trustees. Two or more persons, who are associated in the administration of an estate, the execution of a will, or the performance of a trust. Joint bond. A bond given by two or more obligors, and' binding them jointly, not severally. Joint committee, in legislative prac- tice, is composed of members selected by each branch or house of a legislative body, to meet and act together; as a committee formed of senators and repre- sentatives in congress, or of lords and commoners in parliament. Joint contract. One in which the contractors are together bound to per- form the promise or obligation therein contained, or are together entitled to re- ceive the benefit of such promise or obli- gation. Joint creditors. Persons united in ititerest in a demand; owning a debt together. Joint debtors. Persons united in an indebtedness or obligation; who owe a debt together. Joint fine. If a whole vill is to be fined, a joint fine may be laid, and it will be good for the necessity of it; but, in other cases, fines for ofEences are to be severally im- posed on each particular offender, and not jointly upon all of them. (1 RoU. Rep. 33 ; 11 Rep. 42; Dyer, 211.) Jacob. Joint indictment. One indictment brought against two or more offenders, charging them as having been together guilty of the ofience alleged. Joint lives. This expression, which is met with more frequently in English books, applies when a right is granted to two or more persons, to be enjoyed while both live. Annuity to two for their joint lives is payable until one dies. Joint-stock association, or com- pany. A name applied to a imion of persons owning together a capital stock which they have devoted to a common purpose, under an organization analogous to that of a corporation; or to a body upon which some of the privileges or powers of corporations have been con- ferred by statute, but which is not in a full sense a corporation. Exceptionally, the term is used in the sense of joint-stock corporation ; thus in- surance companies are called mutual or joint-stock companies, but without in- tending to imply that they are not in- corporated. The term is in more common and defi- nite use in England than in this countiy. Many of the states, however, have stat- utes regulating joint-stock companies. There is, however, some difficulty in harmonizing the English nomenclature with that in use in this country. In both' countries there has been a great extension of the principle of allowing men to combine for a large enterprise, without assuming the full liability of partners ; and in both countries a danger has been seen in giving to members of such combinations the entire immunity from liability possessed by members of corporations formed under the old com- mon-Jaw forms of incorporation. In England, the policy has been to confine incorporation to its original meaning, and grant it only in rare cases; while laws have been passed which allow part- nerships under such names as joint-stock companies, public companies, &c., to as- similate themselves to corporations, and enjoy, to a considerable extent, corpo- rate powers, and exemption from per- sonal liability, but which do not affect to recognize such bodies as " corporar tions " in the full sense of that term. In this country, upon the other hand, it has been thought convenient to create JOINT 653 JOINT corporations, under that name, for al- most any purpose for which simple part- nership forms were inadequate, and to secure creditors by imposing an individ- ual liability upon members or officers of the corporation. Hence much of the law of English joint-stock companies applies directly to what in this country are termed " coi-porations. " In England, a joint-stock company has been defined to be a qualified or quasi coi-poration, constituted neither by char- ter, act of parliament, nor letters-patent, but by the act of the members them- selves, the interest of every member whereof is freely transferable without the consent of the rest. 3 Steph. Com. 19. Such a company, if established be- fore the passing of what are known as the joint-stock companies acts, and if it has not adopted their provisions, is simply a partnership. It may consist of a large number of members ; but their rights and liabilities are precisely the same as those of any other sort of part- ners, subject only to the peculiar regu- lations contained in an instrument of organization called a deed of settlement. The capital is divided into equal parts called shares ; each member of the com- pany has a certain number of these, and is entitled to participate in profits ac- cording to his number of shares. The management of the' business is confided to some few shareholders, called direc- tors, and the general body of the share- holders have, unless on extraordinary occasion?, no power to interfere in the concerns of the company. But it early became usual for such companies to obtain a private act of parliament in aid of their deed of settle- ment; and at length certain general acts were passed for the regulation of such companies. These acts correspond in general na- ture and utility to the general acts of incorporation which have become so common throughout the United States. Brown gives a summary of these joint- stock companies acts of parliament, as they were in force down to 1874, from which it appears that joint-stock bank- ing companies form one important and quite distinct class, subject to enact- ments appropriate to them. All joint- stock banking companies, if formed under Stat. 7 Geo. IV. ch. 46, and not registered since, are governed by that act and their deed of settlement; if formed and registered under the act of 1857 (20 & 21 Vict. ch. 49), they are governed by their deed of settlement, and so much of the companies act of 1862 as applies to companies registered but not formed under it; if formed under the 20 & 21 Vict. ch. 14, and 21 & 22 Vict. ch. 91, they are governed by their rules and articles of association, and the companies act of 1862; or, if formed under the companies act of 1862 (25 & 26 Vict. ch. 89), they are gov- erned exclusively by the provisions of that act. Joint-stock companies other than banks he divides into two classes, ac- cording as they have been by subsequent legislation or have not been excepted from the operation of Stat. 7 & 8 Vict, ch. 110. That act defined the voluntary societies with transferable shares which were subject to its operation, to embrace every partnership whereof the capital is divided into shares transferable without the express consent of all the purchasers ; and also specified associations for the insurance of lives or property, or for granting annuities on lives; and also friendly societies making assurances on lives to the extent specified; and also every partnership which, at its forma- tion, or by subsequent admission (ex- cept any admission subsequent on devo- lution or any act in law), shall consist of more than twenty-five members ; and required their registration. That stat- ute was, however, superseded by the joint-stock companies act 1856 (19 & 20 Vict. ch. 47), which has since been repealed by the companies act 1862 (25 & 26 Vict. ch. 89) ; and this latter stat- ute is now (says Brown, 1874) in force. It consolidates the laws relating to joint- stock companies, and includes in its operation all companies formed and registered under the act of 1856 (19 & 20 Vict. ch. 47); or under the act 18 & 19 Vict. ch. 133, together with certain ■companies not formed under the above- mentioned acts, nor registered. The companies excepted from the operation of Stat. 7 & 8 Vict, were com- JOINT 654 JOINT panies incorporated by statute or char- ter, and companies for executing any bridge, road, railway, or otlier like pub- lic object, not capable of being carried out unless with the authority of parlia- ment. Formerly, each of such com- panies was governed by the provisions of its own charter or special act of par- liament; but, latterly, general provisions were made for the regulation thereof by the companies clauses consolidation act 1845, the lands clauses consolidation act 1845, and, as to railways only, the rail- ways clauses consolidation act 1845 (being respectively the acts 8 & 9 Vict, ch. 16, 18, and 20); and these three general axits apply also to all companies established by act of parliament after May 8, 1845, for the execution of under- takings of a public nature. Under the companies act of 1862, with the exception of companies and partner- ships formed under some other act, or under letters-patent, or engaged in working mines within the jurisdiction of the stannaries, every banking com- pany or partnership consisting of more than ten persons, and every other com- pany or partnership having for its object the acquisition of gain, and consisting of more than twenty persons, established since November 1, 1862, must, and any company consisting of seven or more persons associated for any lawful pur- pose may, be formed and registered under the statute. And mining companies in the stannaries may register under it, and then become subject to its pro- visions, and a peculiar jurisdiction of the stannaries court, conferred by the statute. Every other company, too (ex- cept a railway company), whether pre- viously existing, or formed afterwards in pursuance of an act of parliament or letters-patent, or otherwise duly consti- tuted by law, and every unregistered company consisting of more than seven members, may, with the assent of the shareholders, be registered as a limited or unlimited company under its pro- visions. If not thus registered, the law of companies established under private acts of parliament, charters, or letters- patent is that laid down by their acts, charters, or letters-patent. Companies thus constituted certainly differ very materially from ordinary firms; but, so far as their acts, charters, or letters-patent have not provided, they are governed by the ordinary law of partnership. Joint-stock corporation. This term must be understood as quite different in meaning from "joint-stock company." It designates a corporation (i.e. a legally incorporated body) , but one owning and managing a stock capital ; it distin- guishes business corporations, founded upon a stock subscribed, from benevolent and religious societies, and the like. JOINT TENANCY. That estate which arises when two or more persons acquire propei-ty by purchase, at the same time, in the same title, and with- out any thing to create a difference in their respective interests or possession. Joint tenants: persons who hold prop- erty which they acquired by purchase at the same time, in virtue of the same title, interest, and possession. The important feature or result of joint tenancy is the principle of survivor- ship; according to which, on the death of one tenant, his share, being undis- tinguishably connected with that of his fellow, vests in the survivor or survivors, instead of descending to heirs. The estate was of feudal origin, and appears to have been founded upon the same policy with the law of primogeniture; viz. , the desire to perpetuate estates in the hands of a few, and to discourage their division among many persons. By joint tenancy, the death of k tenant worked no division of the property. This being its character, it has dimin- ished in importance and frequency of occurrence, under modern views of per- mitting the free division of lands and other property. Much difficulty has been experienced by writers on real-property law in fram- ing a definition of this estate. Mr. Freeman gives a discriminating review of several leading definitions, substan- tially as follows: Both Littleton and Blackstone content themselves with giv- ing an instance or illustration of this estate; neither attempts any precise or formal definition. The former says: " Joyntenants are, as if a man be seized of certaine lands or tenements, &o., and JOINT 655 JOINT eiifeoffeth two, three, or four or more, to have and to hold to them for terme of there lives, or for terme of another's life, by force of which feoffment or lease they are seized, these are joyntenants." According to Blackstone, an estate in joint tenancy is where lands or tene- ments are granted to two or more per- sons to hold in fee-simple, fee-tail, for life, for years, or at will. Each of these illustrations shows rather how a joint tenancy may be created, than what its peculiar incidents are after its creation. The definition ascribed to Littleton is more objectionable than Blackstone's, because it involves the idea that joint tenancies cannot be of estates in fee, but are confined to estates for life. Both illustrations are alike faulty in im- plying that a joint tenancy must neces- sarily be created by feoffment or grant, and that it does not include personal property. They are also liable to the further objection of assuming that a grant to two or more is the chief feature of joint tenancy, whereas a tenancy by entirety was also created by a grant to two (they being husband and wife) ; and a tenancy in common arose from a grant to two or more, when the grantor in- serted words indicating an intent to create a several, instead of a joint, estate. Mr. Cruise, in treating of joint tenancy, avoids this last objection when he states that "where lands are granted to two or more persons, to hold to them and their heirs, or for term of their lives, or for term of another's life, without any restrictive, exclusive, or explanatory words, all the persons named in such instru- ment to whom the lands are so given take a joint estate, and are called joint tenants. ' ' Joint tenants, according to the defi- nition of Chancellor Kent, are " per- sons who own lands by a joint title, created expressly by one and the same deed or will. They hold uniformly by purchase. ' ' This definition has the vice of implying that joint tenancy does not apply to chattels, and that it could not exist in title by prescription. A better definition than either of those heretofore alluded to is that of Mr. Preston, viz., "Joint tenancy is when several persons have any subject of property jointly between them, in equal shares, by pur- chase." This definition, as well as that of Chancellor Kent, is too broad in this, that it embraces tenancy by entireties as well as joint tenancy. It is doubtful, too, whether joint tenants necessarily hold in equal shares. Thus, if A, B, and C be joint tenants, and C alienate one- half of his moiety to D, A, B, and C re- main joint tenants, though the interest of C is no longer equal to that of A or B. Perhaps, however, after such alien- ation the estate would be held as follows : one-half by A, B, and C as joint tenants ; one-third by A and B as joint tenants ; and one-sixth by D as tenant in common. Viewed in this light, the alienation would create two joint tenancies, in one of which the interests of the co-tenants A and B would be equal, and in the other the interests of the co-tenants A, B, and C would also be equal; and thus the correctness of Mr. Preston's definition would be established. If this definition were modified so as to exclude tenancies by entireties, and by inserting "two or more" in the place of "several," it would seem correct. It would then stand: Joint tenancy is when two or more persons, not being husband and wife at the date of its acquisition, have any subject of property jointly between them in equal shares, by purchase. Freeman Coten. §• Part. §§ 9, 10. Professor Washburn gives the defini- tion above quoted from Preston, appar- ently adopting it, and adds particulars in description of the estate. Each of the joint tenants has the whole and every part, with the benefit of survivorship, unless the tenancy be severed. In the quaint language of the law, they hold each^er my etper tout, the effect of which, technically considered, is that, for pur- poses of tenure and survivorship, each is the holder of the whole; but, for pur- poses of alienation, each has only his own share. And the shares are presumed to be equal. If the grant of one parcel of land defines the share and interest which each is to take, it creates an estate in common, and not a joint tenancy. More- over, while joint tenants constitute but one person in respect to the estate, as towai-ds the rest of the world, each, as between themselves,- is entitled to his JOINTURE 656 JOINTURE share of the rents and profits while he lives, but subject to the right of the sur- vivor or survivors to take the entire es- tate upon his death. There may be a joint tenancy whether the estate be in fee, for life, for years, or at will, and also, of estates in remainder. So there may be a joint tenancy in an estate for life, though the reversion or remainder be in only one of the tenants, and if he who has the reversion in fee die first, his heir will be postponed as to his enjoy- ment of the estate, until after the de- cease of the other joint tenant. But a joint tenancy can only be created by purchase or act of the parties, and not by descent or act of the law. It must, moreover, be created by one and the same act, deed, or devise, and joint dis- seisors may be joint tenants. A joint tenancy at common law must have a fourfold unity, as it is called, viz., of interest, of title, of time, and of pos- session; the interest being acquired by all, and by the same act or conveyance, commencing at the same time and held by the same undivided possession. But under the law of uses as well as by wiU, the unity of time may be so far dis- pensed with as to allow two or more joint tenants to take their shares at different times. 1 Washb. Real P. 642. We have hesitated to accept Mr. Preston's definition, for the verbal reason that it employs "jointly," which is an element in the term in question. " Joint tenancy is having property jointly." But what is having property jointly? That is part of the thing to be defined. Therefore the definition at the head of this article is ptroflered in addition. The case of a conveyance to husband and wife is not excluded, because, con- ceding that it was not at common law a species of joint tenancy, the enabling married women's acts, so extensively passed of late years, seem to obliterate the distinction wherever they prevail. On this point, the local law must be consulted. Joint trespassers. Persons who unite in the commission of a trespass. JOINTURE. A species of estate in lands which is a substitute for dower. Jointress or jointuress: a woman who has an estate settled upon her for life, in lieu of dower. On account of rights of dower, under the early law on that subject, being in- convenient restrictions upon alienation, parliament, by the statute of uses, Stat. 27 Hen. VIII. ch. 10, provided jointure in lieu of dower. Originally, the word meant a joint estate limited to both husband and wife, but by later rules may be an 'estate limited to the wife only, expectant upon a life-estate in the husband; and has been defined as "a competent livelihood of freehold for the wife, of lands or tenements, &c., to take effect presently in possession or profit, after the decease of her husband, for the life of the wife at least." Some confusion observable in the use of the word may be cleared up by reflect- ing that this species of provision for the wife, might operate as an absolute bar of dower, or might only put her t6 her election between her dower and her jointure. Often a provision is called a jointure or not a jointure, when the meaning is that it is or is not an abso- lute bar. To a strict legal jointure, six things are said to be requisite : The provision for the wife must take effect in possession or profit immediately after her husband's death. It must be for her own life at least, and not pour autre vie, or for any terms of years, or for any smaller estate. But the widow will be bound by the accep- tance of a precarious interest, if she were adult at the time she agreed to the join- ture. It must be made to herself, and no other in trust for her. It must be made in satisfaction of the whole of her dower, and not of part only. It must be either expressed or averred to be in satisfaction of dower. It must be made before marriage ; if made after mamage, the widow may in general waive it, and claim her dower. A jointure is a settlement of land and tenements made to a woman in considera- tion of marriage ; or it is a covenant, where- by the husband, or some friends of his, assur- eth to the wife lands or tenements, for term of her life. It is so called, either because it is granted rations Jtincturce in matrimonio, or JOURNAL 657 JUDEX for that land in frank-marriage was given jointly to husband and wife, and after to the heirs of their bodies, whereby the hus- band and wife were made as it were joint tenants during the coTerture. Tomlins. The term jointure is used in Ky. Rev. Stat, to denote any species of estate, in real or personal property, created by con- veyance or devise, intended to be in lieu or satisfaction of dower. Whether a provi- sion for a wife, by deed or will, should be regarded as a jointure, in the sense of the statute, is a question of intention, to be de- termined upon the general face of the in- strument. No express statement of such intention is necessary. Tevis v. McCreary, SMetc. {Ky.) 151. In Me. Stat. 1821, ch. 40, concerning dower, the word jointure is used in its well- known and established legal sense, and must be a freehold estate in lands or tenements sectired to the wife, to take effect on the decease of the husband, and to continue during her life, at the least, unless she be herself the cause of its determination. But no jointure can prevent the widow from having her dower, unless made before mar- riage and with her consent. And a legal' jointure cannot be composed partly of a freehold and partly of an annuity not se- cured on real estate. Vance v. Vance, 21 Me. 364. A marriage contract, by which is re- served only the right to dispose of the indi- vidual property at death, is not a jointure, and is no bar to the widow's claim for dower ; and, if there is no disposition made of the property by the parties, it is subject to the course prescribed by law. White- head V. Middleton, 3 Miss. 692. Under the Missouri dower law of 1845, a settlement, whether antenuptial or post- nuptial, does not operate as a jointure, un- less expressed to be in bar of dower. Perry V. Ferryman, 19 Mo. 469. It is not essential to the validity of a jointure that it should be exempt from any incumbrance, the widow, if evicted of her jointure, having still a right to claim her dower. Ambler v. Norton, 4 Hen. Sf M. 23. That jointure is abolished in New York by the revised statutes, see McCartee v. Teller, 2 Paige, 511. JOURNAL. 1. Any book kept as a record of what is done day by day, or of proceedings in the order of their occur- rence. 2. In book-keeping, the journal is a book of account used in double entry, the chief object of which is to contain a monthly abstract of the day-book, &c., so that the entries may be posted in a brief form into the ledger. 3. In legislative parlance, the journal of either house is the daily record of its proceedings kept by the clerk, in which VOL. 1. 42 the various motions, votes, resolutions, &c., are entered as they occur. JOURNEY. As used in Tenn. act of 1870, prohibiting the carrying of deadly weapons, except on a journey, &c., does not include mere travel in the neighborhood of one's house, though in another county. Smith V. State, 3 Ueisk. 511. JOURNEYS ACCOUNTS. A term in ancient English practice, under the rules of which, if a suit became abated without the default of the plaintiff or demandant, the plaintiff might purchase a new writ within as little time as he possibly could after the abatement of the first writ; and, if he did so, then the second writ was treated as a continu- ance of the first. While chancery was movable, one who purchased a new writ was required to apply as hastily as distance of the place would al- low, accounting twenty miles for every day's journey ; and his second writ must show he had purchased it as hastily as he could, ac- counting the days' journeys. Hence the name joumdes accounts, by journeys reck- oned. Kinsey v. Hey ward, 1 Ld. Baym. 432. JUDEX. A judge ; an officer who administers justice and declares the law. 1. In the Roman law. A private per- son who, under appointment of the magistrate for the particular cause, tried and decided a case; in general, one, but sometimes a greater number, were appointed in each cause. The ac- tion proceeded before the praetor until issue was joined, and was until then said to be in jure ; afterwards it proceeded before a judex or jp,dice.s, and was then said to be in judicio. The functions of judices, in hearing and determining the issues in a cause, to a great extent coincided with those of jurors in the common-law system. They decided questions of fact, and perhaps, also, ques- tions of law, but were furnished in each case with instructions from the praetor as to the legal principles involved, as well as with the formula or record in the action. See Actio. 2. In the civil law. The practice of appointing judices for particular causes was disused in the Roman law even be- fore the time of Justinian, and the term judex was thenceforward applied to the magistrate who conducted the proceed- ings in the cause from its beginning to its end, and finally decided it. The word is used in this sense in the civil law. JUDGE 658 JUDGE 3. In old English law. A judge; particularly an ecclesiastical judge, as distinguished from the justices of the common-law courts, tenned in Latin Justitiarius. Judex aequitatem semper spectare debet. A judge ought always to regard equity. Judex ante oculos Eequitatem sem- per habere debet. A judge ought al- ways to have equity before his eyes. Judez bonus nihil ez arbitrio suo faciat, nee propositione domesticae Toluntatis; sed juzta leges et jura pronunciet. A good judge may do nothing from his own judgment, or from a dictate of private will; but let him pronounce according to law and justice. Judex damnatur cum nocens ab- solvitur. The judge is condemned when a guilty person escapes punish- ment. Judex est lex loquens. A judge is the law, speaking. Judex habere debet duos sales: salem sapientise, ne sit insipidus; et salem conscientiae, ne sit diabolus. A judge should have two salts: the salt of wisdom, lest he be insipid; and the salt of conscience, lest he be devilish. Judex non potest esse testis in propria causa. A judge cannot be a witness in his own cause. Judex non potest injuriam sibi datam punire. A judge cannot pun- ish an injury done to himself. Judex non reddit plus quam quod petens ipse requirit. A judge restores not more than that which the plaintifE himself requires. Judex ad quem. Judge to whom. Spoken of a superior judge; one to whom an appeal is addressed. Judex a quo. Judge from whom. Spoken of an inferior judge; one from whom an appeal has been taken. This phrase, in English form, is in frequent use; " judge a quo " or " court a qua " recurs often in Louisiana reports as the designation of the judicial officer, or of the tribunal whose decision is under review. .^V JUDGE. A public officer, empow- ered to administer justice in a court; the chief member of a court, and charged with the control of proceedings and the decision of questions of law or discre- tion; a magistrate of high dignity in the law, charged with conducting the trial of causes, and often with deter- mining the punishment of offenders. Judge and justice (q. v.) are often used in substantially the same sense. In Great Britain, the king is considered as the fountain of justice, and general con- servator of the peace of the kingdom. The original power of judicature, by the funda- mental principles of society, is lodged in the society at large ; but as it would be impracticable to render complete justice to every individual by the people in their col- lective capacity, therefore every nation has committed that power to certain select magistrates, who, with more ease and expe- dition, can hear and determine complaints ; and in this kingdom, this authority iias im- raemorially been exercised by the king or his substitutes. He, therefore, has alone the right of erecting courts of judicature ; for, though the constitution of the kingdom hath intrusted him with the whole execu- tive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and exten- sive trust ; it is consequently necessary that courts should be erected, to assist him in executing this power, and equally neces- sary, that, if erected, they should be erected by his authority. And hence it is that all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pass under his seal, and are executed by his officers. It is probable, and almost certain, that in very early times, before our constitution arrived at its full perfection, our kings, in person, often heard and determined causes between party and party. But, at present, by the long and uniform usage of many ages, our Idngs have delegated their whole judicial power to the judges of their several courts ; which are the grand depositaries of the funda- mental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, wMch the crown itself cannot alter, but by act of parliament. In this distinct exist- ence of judicial power in a peculiar body of men, nominated, indeed, but not removable, ■ at pleasure by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be, in some degree, separated both from the legis- lative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of tlie subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any funda- mental principles of law ; which, though legislators may depart from, yet judges JUDGE 659 JUDGE are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative. For which reason, by Stat. 16 Car. I. eh. 10, which abolished the court of star chamber, effec- tual care is taken to remove all judicial power out of the hands of the king's privy council. Jacob. The term judge is used especially of the judges of the superior courts of law and equity in England and Ireland, and of the court of session in Scotland, and of the su- preme court in any colony or dependency. But the presiding officers of local and infe- rior courts are frequently so called. Thus we speak of "county court judges," &c. In its widest sense, the title signifies any one invested with authority to decide ques- tions in dispute between parties, and to award the proper punishment to offenders. Modey §• W. Judge is a judicial administrator who presides in a court duly constituted, declares the law in all matters that are tried before him, and pronounces sentence or judgment according to '-the law. Some judges are called recorders, but the name does not alter the nature of the office. When the judges are simply spoken of, the fifteen judges of the superior courts of common law are meant, namely, of the courts of queen's bench, common pleas, and the ex- chequer. There are besides five judges of equity.. Cah. Lawyer, 703. The general duties of a judge in the process of forming his judgment in a cause are : to gather the materials, as facts, law, and authorities, of which to form his judg- ment ; to set on authorities their just value, and to take them as guides in the forma- tion of his judgment; to hear the argu- ments of counsel; to contend with difficul- ties presented by tlie subject of the suit or by authorities, and, aided by his own knowledge and arguments, and the argu- ments of counsel, with a single and unbiased mind to deliberate his judgment; and in so doing to heed the nature of the ease, as a case that is new, or that falls within some rule, or is concluded by precedent, or is dis- tinguishable from precedent, or is a case fit to be adjudged on its own particular cir- cumstances only ; and, in most instances, to look forward to the consequences of the judgment contemplated. Bam Leg. Judg. 4. A judge of probate is not within a con- stitutional provision which prohibits the election of " judges " within thirty days of a general election. The official title " judge of probate " is the mere designation of an officer whose functions do not distinctively make him a judge within the meaning of the constitution. State v. French, 1 Chand. 130. By the words " any judge of a court of record," in N. Y. Laws of 1848, 66, § 2,— providing that a certain application may be made to any judge of a court of record in any county in which the judgment on which the complaint is grounded is docketed, and in which the defendant resides, — the legis- lature meant any judge of a court of record commonly called judge, and known and spoken of as a judge of the court of record. Neither the recorder of the city of New York nor the city judge is such judge of a court of record. People v. Goodwin, 50 Barb. 562. Section 4 of Ind. Rev. Stat. 1852, 6, au- thorizes the clerk, auditor, and sheriff to appoint a person to preside at a term of the circuit court, only in case the circuit judge is temporarily absent ; and not when the office is vacant. Case v. State, 5 Ind. 1. A judge who begins to hear a case, and is appointed judge of a new court which supersedes the old, may continue the hear- ing without a resubmission of the case. Scale w. Ford, 29 Cal. 104. Where a party was indicted for a crime, tried, convicted, and sentenced, at a term of a circuit court held by a person who exer- cised the office of judge of said court under an appointment of the governor made with- out authority of law (there being another person entitled to exercise said office), the sentence was nevertheless held valid, and binding. State v. Bloom, 17 Wis. 521. The territorial judges, holding over under the constitution of Iowa, could not act as judges of the supreme court, and also of the district courts, as the two offices in the same person are incompatible. Allen v. Dunham, 1 Greene (Iowa), 89. The absence of a judge from the state is not such a vacancy as can be supplied by the executive under legislative authority, and the act of the legislature, authorizing the governor to appoint a judge of the supreme court during the absence of one of the judges from the state, is unconstitu- tional. People V. Wells, 2 Cal. 610. The provision of 111. Const., art. 5, § 11, that no person shall be eligible to the office of judge of any court in the state, who is not a citizen of the United States, and who shall not have resided in that state five years next preceding his election, and who shall not for two years next preceding his election have resided in the division, circuit or county in which he shall be elected, applies only to judges of courts established or recognized by the constitution, and which are required to be elected by the voters of divisions, circuits, and counties. People V. Wilson, 15 lU. 388. The provision of N. Y. Laws 1847, 319, ch. 280, § 81, — that " no judge of any court shall have a voice in the decision of any cause in which he has been counsel, attor- ney or solicitor, or in the subject-matter of which he is interested," — applies to justices of the peace. Carrington v. Andrews, 12 Abb. (N. Y.) Ft. 348. For the judge of the court of common pleas to sit for the judge of the circuit court, in a particular case in which the lat- ter is incompetent, does not amount to hold- ing two offices. Dukes v. State, 11 Ind. 557. JUDGE 660 JUDGMENT A judge cannot delegate his power to another, nor can a person be authorized to act as judge by agreement of the parties to a suit. Wright v. Boon, 2 Greene llotea). 458. * '' The judge of the superior court, sitting to hear appeals from sewer assessments, in compliance with a clause in the charter of the city of Hartford, does not constitute a court within the meaning of that clause of the Connecticut constitution which pro- vides that the judges of inferior courts shall be appointed annually. Clapp v. Hartford, 35 Conn. 220. A judicial officer may be required by law to discharge other than judicial duties. He may, by authority of law, perform minis- terial acts ; but when performed they do not become judicial acts because they were performed by a judicial officer. People v. Bush, 40 Col. 344. Every special tribunal is subject to the maxim, that no person can sit as a judge in any cause in which he is a party, or in which he is interested. Stockwell v. White Lake, 22 Mich. 341. A provision of Ark. Const. 1868, art. 7, § 5, that the general assembly shall not in- terfere with the term of office of any judge, does not preclude them from abolishing a court. Van Buren ».. Mattox, 30 Ark. 566. When a judge of a district court is re- quired, by the proper authority, to hold a term of a court, either regular or special, for some county outside of his proper dis- trict, the authority of such judge is special. The jurisdiction of the j udge of the district is superseded by that of the substituted judge, in that county, during the specified term, but not elsewhere, nor longer. The substituted judge has, in the specified county, all the powers of the judge of the district. Bear ^. Cohen, 65 N. C. 511. Judge a quo. The judge from whose decision an appeal is taken. Judge ad quern. The judge to whom an appeal is carried for decision. , Judge-advooate. The title of the pros- ecuting officer in military law or before courts-martial. There are a judge-advocate appointed by commission under the sign manual, a judge-advocate acting by depu- tation, either special or general, from the judge-advocate-general, and called deputy- judge-advocate, and a person appointed by general officers commanding forces abroad, to act as judge-advocate. Simm. Courts- Mar. Judge-advocate-general. A superior officer, in English military law, appoint- ed to advise the crown in reference to courts-martial and military causes. Judge-ordinary. In England, the judge of the court of probate, sitting as judge of the court of divorce, is so called, as being the ordinary judge of the divorce court. 2 Steph. Com. 239. In Scotland, the title judge-ordinary is applied to all those judges, whether supreme or inferior, who, by the nature of their office, have a fixed and determinate juris- diction in all actions of the same general nature, as contradistinguished from the old Scotch privy council, or from those judges to whom some special matter is committed ; such as commissioners for taking proofs, and messengers-at-arms. Bell. > Judge's certificate. A written state- ment by the judge who tried a cause, assuming the existence of some fact which is required to be thus proved, to warrant further proceedings. Thus, a certificate of probable cause for bring- ing the action must, in some oases, be procured, to protect an officer plaintiff, if unsuccessful, from costs. Judge's minutes, or notes. Memo- randa usually taken by a judge, while a trial is proceeding, of the testimony of witnesses, of documents offered or ad- mitted in evidence, of offers of evidence, and whether it has been received or re- jected, and the like matters. They are very often referred to in settling a case which is to present the evidence to an appellate court ; and they may be the basis of a motion before the judge for a new trial. Judge's order. An order made on summons by a judge at chambers. JUDGMENT. The authenticated de- cision of the court, obtained in a suit, upon the relative claims of the parties therein submitted; the sentence of the law pronounced by the court upon the matters presented by the record of pro- ceedings in a suit. ^Oet^wii^.^ /f Si The definition given by the New York code of procedure, which has been widely approved, is, the final determination of the rights oi the parties in the action. Code, § 245. Freeman says that judgment, except where the signification of the word has been changed by statute, is defined as the decision or sentence of the law pro- nounced by a court or other competent tribunal upon the matter contained in the record; or as the conclusion of the law upon facts found by the court or jury, or admitted by the parties. The reasons announced to sustain the de- cision, and the award of execution, con- stitute no part of the judgment. JUDGMENT 661 JUDGMENT Freeman recommends a classification founded upon the state of the pleadings at the time when the court makes its final decision. As stated by him, it appears intended to include judgments in common-law actions of a civil nature only; the classes being as follows: 1. Judgments rendered where the pleadings present no other issue than an issue of law. These are: The judgment given for the plaintiff when an issue of law formed by a demurrer to any of the pleadings in chief is determined in his favor. It is final, and is called a judgment quod recuperet. The judgment given for defendant when a like issue is found in his favor. Judgment of respondeat ouster, a species of interlocutoiy judgment for the plaintiff on demurrer to a plea in abatement, when it appears that the de- fendant has mistaken the law on a point not affecting the merits of the case. By this judgment he is allowed to plead such further defence as he may have. The judgment given for the defendant on a demurrer to a plea in abatement, which is, -that the writ be quashed. 2. Judgments rendered upon the de- cision of a court or a jury upon the issue or issues of fact made by the pleadings. These are : The judgment for plaintiff upon an issue of fact found in his favor. The judgment of nil capiat per breve or per billam, when rendered, although the issue of fact has been found in plain- tiff's favor. Judgment quod partes replacitent. This is given if an issue is formed, and a ver- dict returned on so immaterial a point that the court cannot know for whom to give judgment. The parties must then reconstruct their pleadings, begin- ning at the first fault which occasioned the immaterial issue. 3. Judgments given where no issue has been made by the party required to plead. These are: Judgment nil dicit, rendered whenever the defendant fails to plead to the plain- tiff's declaration in the time allowed for him to do so. This judgment is proper, although the defendant who fails to plead in time may have appeared by attorney. Judgment non sum informatus, ren- dered when the defendant enters upon the record that he is not informed of any defence to the action. Judgment by confession relicta verifi- catione, entered when the defendant either confesses the action in the first instance, or when, after pleading, he before trial abandons his plea. Judgment non obstante veredicto, ren- dered when, after the verdict of the jury has been returned and befoi-e the judg- ment thereon is entered, it appears by the record that the matters pleaded or replied to, although found true, consti- tute neither a defence nor a bar to the action. This judgment can only be en- tered on application of the plaintiff. 4. Judgments entered where, before or after the joining of an issue of law or of fact, the plaintiff abandons or withdraws his prosecution. These are: Judgment of non pros., entered against the plaintiff, before any issue is joined for not declaring, replying, or surrejoin- ing, or for not entering the issue agree- ably to the rules of the court. Judgment of nolle prosequi, which is entered when plaintiff declares that he wiU not further prosecute his suit, or entry of a stet processus, by which plain- tiff agrees that all further proceedings shall be stayed. Judgment of retraxit. This is given when the plaintiff voluntarily goes into court and enters on the record that he withdraws his suit. It differs from a nonsuit in that it is positive. Nonsuit is a mere neglect of plaintiff ; therefore he may sue again, upon- payment of costs; but a retraxit is an open, volun- tary renunciation of his claim in court, and by it he for ever loses his action. Judgment of nonsuit, which is of two kinds, voluntary and involuntary . When plaintiff abandons his case, and consents that judgment go against him for costs, it is voluntary. But when he, being called, neglects to appear, or when he has given no evidence on which a jury could find a verdict, it is involuntary. Freem. Judg. § 6. Judgment is the sentence or order of the court in a civE or criminal proceeding. Monhy ^ W. Judgment, though pronounced or award- ed by the judges, is not their determination JUDGMENT 662 JUDGMENT or sentence, but the determination and sen- tence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, which stand thus : against him who hath rode over my com, I may recover damages by law; now A hath rode over my corn ; therefore, I shall recover damages against A. If the major proposition be denied, this is a demurrer in law ; if the minor, it is then an issue of fact; but if both be confessed (or deter- mined) to be right, the conclusion or judg- ment of the court cannot but follow. Which judgment or conclusion depends not there- fore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice. The judgment, in short, is the remedy prescribed by law for the redress of injuries ; and the suit or action is the vehicle or means of administering it. What that remedy may be, is indeed the result of deliberation and study to point out; and, therefore, the style of the judgment is, not that it is decreed or resolved by the court, for then the judgment might appear to be their own ; but, " it is considered," consid- eratum est per curiam, that the plaintiff do recover liis damages, his debt, his posses- sion, and the like ; which implies that the judgment is none of their own, but the act of law, pronounced and declared by the court after due deliberation and inquiry. (1 Co. Inst. 39.) Jacob. The following are the several species of judgments most usually occurring in prac- tice ; Judgment on plea in abatement. If it be for the plaintiff upon verdict, it is per- emptory, quod recuperet, and, therefore, in actions for damages, if the jury do not assess them, a trial de novo must be award- ed. But if it be on demurrer, or on replicar tion of nul tiel record, it is not final, but merely a respondeat ouster. Judgment for the defendant is, that the writ be quashed, unless the matter pleaded in abatement is some temporary disability, such as infancy, &c., in which case the judgment is, that the plaintiff must remain without day, until, &c. \Tidd,&i'i.) Judgment in ejectment. Judgment on a cognovit. If the cognovit be made unconditionally, the plaintiff may, of course, sign judgment and sue out exe- cution as soon as he pleases. If there be conditions inserted in it, judgment must be in strict pursuance thereto. Judgment in default of appearance or for want of a plea. Judgment in demurrer. It is either in- terlocutory or final, in the same manner as judgment by default. If a defendant plead several matters to the same or several counts of a declaration, and the plaintiff demur to some of the pleas, and take issue upon others ; if the defendant succeed upon any of the pleas demurred to, and that plea be an answer to the whole action, the plain- tiff shall not have judgment upon the issues in fact, should they be found for him ; but the only judgment that shall be entered is nil capiat per breve. ( 1 Sound. 80, n. 1.) Judgment de melioribus damnis. Judgment in error. Judgment against executors or administra- tors. In an action against an executor or administrator, suggesting a devastai-it, tlie_ judgment against the defendant shall be de bonis propriis, and so, if he plead a plea which he knows to be false, and also if he be made liable and charged as assignee ; but otherwise, the judgment would be de bom's testatoris, (2 Chit. Arch. Prac. hy Pren. 1177.) Judgment against heirs or devisees. If an heir have aliened the lands previously to the suing out of the writ, he is expressly rendered liable for the specialty debts of his ancestor, to the amount of the lands aliened, by Stat. 11 Geo. IV. and 1 Wm. IV. ch. 47, § 6 ; and an action is maintain- able against a devisee, rendering wills in fraud of creditors void ; and Stat. 3 & 4 Wm. IV. ch. 104, renders the lands liable to every kind of debt. Judgment against prisoners. The plain- tiif shall proceed to trial or final judgment against a prisoner in the term next after issue is joined, or at the sittings or assizes next after such term, unless the court or a judge shall otherwise order, and shall cause the defendant to be charged in execution _ within the term next after such trial or judgment. Otherwise, the prisoner may be discharged or superseded. {R. 124, H. T. 1853.) Judgment quando acciderinl. If, on the plea of plene adminiatravit in an action against an executor or administrator, or on the plea of riens per descent in an action against an heir, the plaintiff, instead of taking issue on the plea, take judgment of assets quando acciderint, in this case, if as- sets afterwards come to the hands of the ex- ecutor or heir, the plaintiff must first sue out a scire facias, before he can have execu- tion. If, upon this scire facias, assets be found for part, the plaintiff may have judg- ment to recover so much immediately, and the residue of the assets in futuro (1 Sid. 448.) Judgment non obstante veredicto. Where the defence put upon the record is not a legal defence to the action in point of sub- stance, and the defendant obtain a verdict, the court, upon motion, will give the plain- tiff leave to sign judgment notwithstanding the verdict, provided the merits of the case be very clear. But where the plea contains no confession of the cause of action, the proper course is toward a repleader, and not to give judgment non cHistante veredicto. A defendant cannot obtain this judgment in any case ; he must arrest the judgment. It must be moved for within four days from the time of trial, if there are so many days in term ; it cannot in any case be moved for after the expiration of the term, provided the jury precept be returnable in the same term. The judgment is interlocutory ; after JUDGMENT 663 JUDGMENT which a writ of inquiry must be executed, and final judgment signed as in ordinary cases. If the defendant have succeeded on any of his pleas, he will be entitled to re- tain his verdict on them : and there must be a trial rle novo ; the successful party is entitled to the costs of the material issues. (Com. Law Proc. Act, 1852, § 145; 2 Chit. Arch. Prac. by Pren. 1483.) Judgment of non pros. It is a final judg- ment for costs, signed by a defendant only, whenever a plaintiff, in any stage of tlie cause, neglects to prosecute his action, or part of it, within the times limited by the rules of the court. (2 Chit. Arch. Prac. by Pren. 1409.) Judgment as in case of a nonsuit. Judgment upon nul tiet record. The judg- ment for the plaintiff is interlocutory or final, just as it is upon demurrer or default ; but the defendant's judgment would be final. A rule for judgment is not now nec- essary. By rule 10 of H. T. 1853, where a defend- ant shall plead a plea of judgment recovered, he shall, in the margin of such plea, state the date of such judgment, and if such judgment shall be in a court of record, the number of the roll on which such proceed- ings are entered, if any ; and, in default of his so doing, the plaintiff shall be at liberty to sign judgment as for want of a plea; and, in case the same be falsely stated by the defendant, the plaintiff on producing a certificate from the proper officer, or per- son having the custody of the records or proceedings of the court .where such judg- ment is alleged to have been recovered, that there is no such record or entry of a judgment as therein stated, shall be at lib- erty to sign judgment as for want of a plea. Judgment in replevin. Judgment in scire facias. The judgment is the same as in ordinary cases. Judgment on warrant of attorney. Judg- ment may be entered upon a warrant of at- torney, at the time therein specified for that purpose ; and if the warrant were given to secure the payment of money, it is not necessary that the plaintiff should delay the signing of the judgment until default be made in the payment, unless that be ex- pressly stipulated for in the defeasance. If the warrant specify any particular time at which the judgment is to be signed, it cannot be entered up at any other time. Within a year and a day from the date of a warrant, judgment may be entered up as of course ; but leave to enter up judgment on a warrant of attorney above one, and under ten years old, must be obtained by order of a judge made ex parte ; and, if ten years old or more, upon a summons to show cause. The application for such leave is founded upon an affidavit, stating the con- sideration for the warrant of attorney, its execution, the amount remaining due to the plaintiff, and alleging positively that the defendant was alive at a certain time therein mentioned. {H. T. 1853. r. 26.) In criminal cases, judgment, unless any matter be offered in arrest thereof, follows upon conviction, being the pronouncing of tliat punishment which is expressly or- dained by law. Wharton. Judgment is given either for the plaintiff or the defendant ; when for the plaintiff, it is either a judgment by confession, or by default ; when given for the defendant, it is either a judgment of nonsuit, non pros., re- traxit, nolle prosequi, discontinuance, or stet processus ; and judgment may be given for either party upon demurrer, issue of nul tiel record, or verdict. A judgment by confes- sion or default is such a judgment as is signed against the defendant when the jus- tice of the plaintiff's claim is admitted by him, either in express terms, as by giving a cognovit, or by conduct, as by failing to take proper steps in the suit. A judgment upon nonsuit is a judgment given to the defend- ant whenever it clearly appears that the plaintiff has failed to make out his case by evidence. A judgment of non pros, is a judgment which the defendant is entitled to have against the plaintiff when he does not follow up {non prosequitur) his suit as he ought to do, as by delaying to take any of those steps which he ought to take beyond the time appointed by the practice of the courts for that purpose. A retraxit, or nolle prosequi, is when the plaintiff, of his own accord, declines to follow up his action ; the difference between them is, that a re- traxit is a bar to any future action brought for the same cause, whereas a nolle prosequi is not, unless made after judgment. A judgment on a discontinuance is when the plaintiff finds that he has misconceived his action and obtains leave from the court to discontinue it, on which judgment is given against him, and he has to pay the expenses. A judgment on a stet processus is entered when it is agreed, by leave of the court, that all further proceedings shall be stayed ; though in form this is a judgment for the defendant, yet it is generally like a discontinuance, being, in point of fact, for the benefit of the plaintiff, and entered on his application ; as, for instance, when the defendant has become insolvent, &c. Judg- ment on demurrer is such a judgment as is pronounced by the court upon a question of law submitted to them, as opposed to a ques- tion of fact, which is submitted to a jury. A judgment upon an issue of nul tiel record is when a matter of record is pleaded in any action, — as a fine, a judgment, or the like, — and the opposite party pleads nul tiel rec- ord, i.e. that there is no such matter of record existing; upon this issue is joined and tendered in the following form : "And this he prays may be inquired of by the record, and the other doth the like ; " and thereupon the party pleading the record has a day given him to bring it in, and proclamation is made in court for him to " bring forth the record by him in pleading alleged, or else he shall be condemned ; " and on his failure to do so his antagonist JUDGMENT 664 JUDGMENT ghall have judgment to recover. A judg- ment upon a verdict is the judgment of tlie court pronounced after the jury have given their verdict. Brown. Judgments are the judicial sentences of courts, rendered in causes within their jurisdiction, and coming legally before them. Peirce ». City of Boston, 3 Mete. {Mass.) 520. The term judgment is sometimes applied to the final determination of the issues in the case, or to the final ascertainment of the guilt of the accused, at nisi prius. It is also used in a larger sense, involving the order for execution or sentence. Common- wealth V. Gloucester, 110 Mass. 491. A decision on a demurrer is a judgment, and must be perfected like one before it is appealable. Cummings v. Heard, 2 Minn. 34. An order of the county court dismissing an appeal from the judgment of a justice, on the ground that it was not brought in time, is a judgment within the definition given in N. Y. Code, § 245 ; the final determina- tion of the rights of the parties in the ac- tion. Pearson v. Lovejoy, 53 Barb. 407. The word judgment includes an order of filiation. Cloud v. State, 2 Harr. ( Del. ) 361. A decree rendered by consent is not, le- gally speaking, a judgment. A judgment is the decision of a controversy given by a court of justice, between parties who do not agree. Consent decrees decide nothing. They merely authenticate private agree- ments, and render them executory between the parties. Union Bank v. Marin, 3 La. Ann. 34. Judgment, in N. C. Rev. Code, ch. 61, § 2, — declaring void all contracts, judgments, conveyances, &c.,for money lost at play, — means only judgments confessed or allowed by consent, and does not include judgments recovered adversely. Teague v. Perry, 64 N. C. 39. Judgment creditor. A creditor who claims to be such by virtue of a judg- ment; that is, a party entitled to enfoi-ce execution under a judgment. Judgment debt: A sum due by a final decision of a court; an indebted- ness shown by judgment. Judgments are very generally liens upon real property of the judgment debtor; and, upon familiar principles of equitable jurisprudence, a creditor may have equitable aid to enforce payment of a judgment debt out of assets that may have been assigned, &o., when for a simple contract debt he could not. The American practice in cases of this class is indicated under creditor's suit, g. V. Mr. Brown gives, in substance, the following account of the English practice having the same general pur- pose : Judgment debts are debts, whether on simple contract or by specialty, for the re- covery of which judgment has been entered up, either upon a cognovit, or as the result of a successful action. The old law of judgments was in many respects different from the present law. Thus, under the old law, which rested substantially upon the acts 13 Edw. I. ch. 18,29 Car. II. ch. 8, and 4 & 5 Wm. & M. ch. 20, the lands affected by a judgment were the entirety of terms for years only, and one moiety of freehold lands, tithes, reversions, and trust estates whereof the trustee was seised for the debtor at the time of execution sued. Estates tail were liable to the extent of one moiety thereof, but only during the life of the tenant in tail; and joint tenancies were in the same position. Moreover, trust terms for years, joint trust estates, and equities of redemption, were altogether ex- empt; as were also copyholds, glebe, and advowsons in gross. Moreover, purchasers (including mortgagees) were not bound by a judgment which was either undocketed or misdocketed (Tunstall v. Trappes, 3 Sim. 286 ; Brandling v. Plummer, 8 De Gex, M. ^ G. 747) ; unless they had notice thereof, in which case they were bound (Davis V. Earl of Strathraore, 16 Ves. 419). However, equity assisted the judgment creditor towards enforcing his execution in respect of those equitable interests be- fore enumerated which were not statutorily liable on an elegit ; thus, in the case of an equitable freehold estate, the judgment creditor, after suing out an elegit, might file his bill in equity for relief (lifeate v. Marl- borough, 3 Myl. Sj- C. 407) ; and, in the case of an equitable leasehold or term of years, the judgment creditor, after suing out a fi. fa., might in like manner file his bill in equity for relief (Gore v. Bowser, 1 Jur. N. 8. 392) ; and this seems to be still the law (Padwick v. Duke of Newcastle, L. R. 8 Eq. 700). On the other hand, under the present law, which depends substantially upon the statutes 1 & 2 Vict. ch. 110 ; 2 & 3 Vict, ch. 11 ; 3 & 4 Vict. ch. 82 ; 23 & 24 Vict. ch. 38 ; and 27 & 28 Vict. ch. 112, the lands affected by a judgment are the entirety of lands, tenements, and hereditaments whether freehold, copyhold, or leasehold, and whether legal or equitable, and whether possessed at the time of entering up judg- ment or afterwards, and whether joint or sole, and whether the interest of the debtor therein amount to an estate in, or only to a general power over, them. Advowsons are no longer exempt from liability ; but with reference to rectories and tithes, only lay and not ecclesiastical ones are intended ( Hawkins v. Gathercole, 6 De Gex, M. ^ G. 1). The judgment prevails against the jus accrescendi in the case of joint tenants (1 Dart Vend. §• P. 431), and also against the issue of tenant in tail, and against re- mainder-men in tail (Lewis v. Duncombe, 20 Beav. 398). JUDGMENT 665 JUDGMENT . The before-mentioned Victorian statutes also made provision for the registration and re-registration of judgments and executions thereon, the short result of which may be stated as follows : Prom Aug. 16, 1838, to July 23, 1860, every judgment that was entered up against the owner of lands re- quired to be registered in the owner's name (i.e. in the name of the debtor), and to be re-registered every five years, in order to become a charge upon the land ; from July 23, 1860, to July 29, 1864, every like judg- ment required to be registered in the name of the debtor, and to be re-registered every five years, and execution thereon required also to be sued out, and also registered in the name of the creditor, and also within three months from the date of such regis- tration to have been executed, in order to become a charge upon the land ; but since July 29, 1864, no such judgment requires to be registered at all, but execution is to be sued out thereon, and to be also regis- tered in the name of the debtor, although even then it is not a charge Upon the land until such land has been actually taken upon the execution by summary process. The date of the registration, and not that of entering up the judgment, or of the registration, and not that of suing out the execution, is the point of time which regulates the priorities or rights of adverse successive claimants ; thus judgment cred- itors, as between tliemselves, take rank according to the order of the dates of their several registrations, and notice of an un- registered judgment entered up at a prior date does not aSect them (Benham v. Keane, 1 Johns. Sf H. 685) ; as neither does such notice afEect a subsequent purchaser or mortgagee, this being the construction of Stats. 3 & 4 Vict. ch. 82, § 2, and 18 & 19 Vict. ch. 15, § 5. But notice of an un- registered judgment does afEect a subse- quent cestui que trust (Benhara v. Keane, supra). And notice of a judgment which has been re-registered within five years prior to the date of the purchase or mort- gage does affect a purchaser or mortgagee having notice thereof, notwithstanding an interval of more than five years may' have elapsed between such re-registration and the next preceding registration (Simpson V. Morley, 2 Kay ij" /. 71) ; but a purchaser or mortgagee who has no notice of a judg- ment, although the same has been regis- tered, and, a fortiori, as already mentioned, if it is either unregistered or not duly re- registered, is not bound thereby, this being the construction of the Stat. 2 & 3 Vict, ch. 11, § 5; for it has been held that regis- tration is not notice (Robinson v. Wood- ward, 4 De Gex ^ S. 562), unless, indeed, it can be proved that the party has made an actual search over the period covering the judgment (Proctor v. Cooper, 2 Drew. 1); and no such search is compulsory either upon a purchaser or upon a mortgagee (Lane v. Jackson, 20 Beav. 635), although it is not, therefore, wise to avoid a search (Preer v. Hesse, 4 De Gex, M. ^ G. 495). And in case the property is situate in a register county, the registration and re- registration must be made both in the local and in the general registries. (Johnson v. Houldsworth, 1 Sim. N. a. 106.) In the case of a judgment which is entered up between a contract for sale and the conveyance of the land, where the judgment is duly perfected as required by the acts, the judgment creditor could not, by the old law, proceed against the land in the hands of the purchaser (Lojdge v. Lyseley, 4 Sim. 70), but would have been restrained by injunction from so doing (Brunton v. Neale, 14 L. J. Ch. 8) ; the judgment creditor might, however, have come against the unpaid purchase-money (Forth V. Norfolk, 4 Madd. 505) ; and the present law is to the same effect (Brown v. Perrott, 4 Beav. 585). And by the present law, upon any sale by a mortgagee, the surplus-proeeeds'of sale are charged by any judgments entered up against the mort- gagor between the dates of the mortgage and tlie sale (Kobinson v. Hedger, 13 Jur. 846). Hut under the old law, and under the present law, a judgment entered up subsequently to a voluntary conveyance, and duly perfected, does not upset the prior voluntary conveyance (Beavan v. Earl of Oxford, 6 De Gex, M. ^ G- 507), a judgment creditor not being a purchaser within the meaning of Stat. 27 Eliz. ch. 4. A judgment entered up against an an- nuitant has been held to be a charge on the land out of which the annuity issues (Younghusband v. Gisborne, 1 De Gex ^ S. 209) ; and the like decision was given re- garding a judgment entered up against one entitled to a gross sum of money chai'ged on land (Russell v. M'CuUoch, 1 Kay Sf J. 313) ; but now, by Stat. 18 & 19 Vict. ch. 15, § 11, where a mortgage is paid off prior to the completion of the purchase, any judg- ment against the mortgagee ceases to be a charge on the lands purchased (Greaves V. Wilson, 25 Beav. 4-34). The extent of the judgment creditor's remedy at law depends on section 11 of Stat. 1 & 2 Vict. ch. 110, and the extent of his remedy in equity on the 13th section of that act. And accordingly, at law, the judgment creditor may proceed against all legal estates of his debtor, and also against all estates held simply in trust for him, but not against any equity of redemption of his debtor ; and in equity he may proceed against all and every the lands of his debtor, having first taken out an degit (Smith V. Hurst, 10 Hare, 30), and obtained actual possession of the lands, if possible, or the nearest equivalent to actual posses- sion (Guest V. Cowbridge Ry. Co., L. R. 6 Eq. 619), and he should pray a sale of the lands, as distinguished from a foreclosure (Tuckley v. Thompson, 1 Johns. ^ H. 126), an order for which he may obtain upon pe- tition in a summary way under the 27 & 28 Vict. ch. 112 [Ee Isle of Wight Ferry, II JUDGMENT 6C6 JUDICATURE Jur. N. 8. 279). Sometimes both a bill and a petition, may, however, be necessary. (Re Cowbridge Rjr. Co., L. R. 5 Eq. 413.) If neither an elegit nor a,fi.fa. can be sued out, there is no remedy. (Padwick v. Newcastle, L. R. 8 Eq. 700.) Brmm. Judgment debtor. A person against whom judgment has been recovered, for the payment of which he is still liable ; one who owes the amount of a judg- ment. He may be either the defendant in the action when the plaintiff has recov- ered judgment for his demand, or the plaintiff when the defendant prevailed and recovered costs. Judgment in personam, or in rem. Judgments and decrees are either in per- sonam or in rem. They are in personam when the proceedings are against the person ; provided the adjudication be of such a nature as to be binding only upon the par- ties to the suit and their privies in blood or estate. Judgments and decrees in rem are not, as the term implies, confined to pro- ceedings where property is proceeded against as a party to the action; but in- clude, in addition to adjudications against the thing, all these decisions or sentences, which, by the policy of the law, are bind- ing upon all other persons as well as upon the parties to the suit. The proceedings prior to the judgment or decree may be in personam, no notice may be given except to the defendant, yet, if the judgment affect the status of any person or of any subject- matter, as in a suit for divorce, it is con- clusive upon the whole world, and is there- fore classed as being in rem. Freem. .Tudgm. §13. A judgment in rem is an adjudication upon the status of some particular subject- matter by a tribunal competent for the pui^pose. Lord v. Chadbourne, 42 Me. 429. Judgment nisi. To afford opportu- nity for full consideration of questions of law arising at circuit, it has long been customary, in English practice, to direct judgment to be entered, to become abso- lute " unless " the court shall within the first four days of the next term ox-der otherwise ; giving the defeated party four days to move against the judgment. Judgment note. A promissory note, containing, in addition to the usual con- tents of a note, a power of attorney authorizing entry of judgment by con- fession, against the maker, upon default of payment. Judgment record, or roll. A formal systematic transcript of the proceedings leading to the judgment in an action, and of the judgment, the authentic offi- cial collection of the papers, proceedings, and judgment in their order. The judgment roll is a parchment roll upon which all proceedings in the cause up to the issue, and the award of venire inclu- sive, together with the judgment wliich the court has awarded in the cause, are entered. This roll, when thus made up, is deposited in the treasury of the court, in order that it may be kept with safety and integrity. In practice, the making up and depositing the judgment roll is generally neglected, unless in cases where it becomes absolutely neces- sary to do so ; as when, for instance, it is required to give the proceedings in the cause in evidence in some other action ; for in such case the judgment roll, or an ex- amined copy thereof, is the only evidence of them that will be admitted. Smith's Act. at Law, 184. The duty of preparing the judgment roll has been, in English practice, until lately, left to the successful party or his solicitor. 3 Sieph. Com, 566. Now, by thie judicature act 1875, sched. 1, order xli., rule 1, every judgment is to be entered by the- proper officer in a book to be kept for the purpose. Mozlei/ ir W. Judgment summons. A summons issued under the debtors' act 1869, and the rules framed in pursuance thereof, on the application of a plaintiff who has obtained a judgment or order in a county court for the payment of any sum or sums of lyoney, but has not succeeded in obtaining payment from the defendant of the sum or sums so ordered to be paid. The judgment sum- mons cites the defendant to appear person- ally in coiu-t, and be examined on oath touching the means he has, or has had since the date of the judgment, to pay the sum in question, and also to show cause why he should not be committed to prison for his default. Robson Bkcy . JUDICATURE ACTS. Important English statutes, which have made an extensive change in the judicial organ- ization and the fundamental principles of procedm-e. They are Stat. 36 & 87- Vict. ch. 66, 1873, and the 38 & 39 Vict. ch. 77, 1875. The first of these enacted the changes intended at the date of its passage, but postponed the time when its provisions should take effect. Several amendments in the system proposed were matured in the interim, and were enacted by the second act mentioned. The changes, as set forth in the two acts taken together, went into operation Nov. 1, 1875. A third act (37 & 38 Vict. ch. 83) is of slight importance, as it only extended the time allowed before the first act should take effect. JUDICATURE 667 JUDICATURE The acts abrogate the organization of the former superior courts, and create one supreme court of judicature in Eng- land, consisting of two permanent di- visions, one of which, her majesty's high court of justice, has chiefly origi- nal jurisdiction; while the other, under the name of her majesty's court of appeal, is clothed chiefly with appellate jurisdiction. The details of this change in the organization of courts are quite fully explained under the heads of the different English courts affected. See CouKTS, subd. Courts of England; Chancery; County Couet; ConRx oi' Appeal; Court of Common Pleas; CouKT FOR Divorce and Matrimo- nial Causes; Court of Exchequer; Court of Exchequer Chamber; Court of King's Bench; Court of Probate ; High Court of Admi- ralty; High Court of Chancery; High Court of Justice; Supreme Court of Judicature. With respect to procedure, the acts effect a fusion of legal and equitable remedies, very analogous to that which has been accomplished in many of the states by the codes of reformed pro- cedure. It is prescribed that, in every civil cause commenced in the high court of justice, law and equity shall be ad- ministered according to seven rules, in substance: 1. If a plaintiff or petitioner claims an equitable estate or right or relief on equitable grounds, the new courts shall give him the same relief as ought to have been given by the former court of chancery ; 2. Equitable defences may be set up, and shall have the same effect as in the court of chancery; 3. Equitable relief may be granted to defendant as against the plaintiff, or as against third persons; such persons, if not originally parties, to be brought in by notice; 4. Equitable estates, rights, duties, and liabilities, appearing inci- dentally in a cause, are to be noticed the same as they were in chancery ; 5. Pro- ceedings in the new courts must not be restrained (except by stay of proceedings ordered by the court) ; but any ground, under former practice for injunction or prohibition upon proceedings at law, may be set up as a defence to an action in the new courts; 6. Subject to the above rules, and some other provisions of the acts, the new courts must recognize and give effect to all legal demands, estates, rights, duties, liabilities, &c., existing by the common law, custom, or statute, in the same manner as before the new acts ; 7. The new courts shall grant ab- solutely, or upon terms, all such remedies as parties may appear to be entitled to, so that all matters of controversy shall be completely and finally determined and multiplicity of proceedings avoided. Eleven new principles of jurisprudence are established, the general nature of which may be indicated as follows : 1. In the administration, in the new courts, of insolvent decedent estates, and winding up of insolvent corporations, the same rules shall prevail and be observed as to the respective rights of secured and un- secured creditors, and as to debts and liabilities provable, and as to the valu- ation of annuities and future or contin- gent liabilities, respectively, as may be in force for the time being under the bank- rupt laws. 2. No claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such ti-ust, shall be held to be barred by any statute of limitations. 3. An estate for life without impeach- ment of waste shall not confer upon the tenant for life any legal right to commit "equitable waste," unless an intent to confer such right expressly appeai-s by the instrument creating such estate. 4. Merger by operation of law only, of any estate, the beneficial interest in which would not be deemed merged in equity, is abolished. 5. A mortgagor entitled for the time being to possession or rents and profits of any land as to which no notice of intention to take possession, &c., has been given by the mortgagee, may sue for such possession, or for such rents and profits, or to pre- vent or recover damages in respect of any wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with another per- son. 6. An absolute assignment of a debt or chose in action notified to the debtor shall be effectual to pass the legal right to it from the date of such notice, and aU remedies for it, and the JUDICIA 668 JUDICIAL power to give a good discharge. But if the debtor, &c. , has notice of any claims conflicting with those of the assignee, he may call upon the claimants to interplead. 7. Stipulations as to time, &c., which would not be deemed of the essence of the contract, in equity, shall have the same effect in all courts as they would have in equity. 8. A mandamus or injunction may be granted, or a receiver appointed by interlocutory order; and this may be done either unconditionally or upon terms; and if an injunction is asked ancillary to a suit to prevent an appre- hended waste or trespass, the injunction may be granted, whether defendant is in possession, or claims a right to do the act sought to be restrained under color of title or not, and whether the estates claimed are legal or equitable. 9. The rules of admiralty relative to damages for collision shall prevail in the new courts. 10. In questions relating to the custody and education of infants, the rules of equityshall prevail. 11. In general, where there is any conflict be- tween the rules of equity and those of the common law, the rules of equity shall prevail. The acts abolish the division of the legal year into terms, so far as relates to the administration of justice; but the terms may continue to be referred to as a measure of time. Subject to rules of court, the judges and commissioners may sit and act at any time and place for the transaction of business. And nu- merous regulations are prescribed for the division and assignment of business among the several branches of the court, and for the conduct of trials and the course of procedure. JUDICIA. Judgments. The plural of judicium, q. v. JUDICIAL. Pertaining to the admin- istration of justice in courts. Whatever emanates from a judge as such, or proceeds from a court of justice, is judicial. A power which, when exer- cised by officers not connected with the judiciary, would be regarded as purely administrative, becomes at once judicial when exercised by a court of justice. And where any power is conferred upon a court of justice, to be exercised by it as a court, in the manner and with the formalities used in its ordinary proceed- ings, the action of such court is to be regarded as judicial, irrespective of the original naturfrof the power. Matter of Cooper, 22 N. Y. 67, 82, 84. The seizure of books or apparatus of a manufacturer, for violation of the internal revenue laws, done by internal revenue officers, is not a judicial proceeding. United States v. A Distillery, 1 Hugh. 533. Acts of the secretary of state of a state, in Issuing and revoking licenses to torelgn insurance companies, under the statute, are not judicial. State v. Doyle, 40 Wis. 175. Judicial action. The taxation of costs is not " judicial action " in the proper sense of the term, but ministerial. It may, there- fore, be made by the clerk, and cannot be reviewed on error. Abbott v. Mathews, 26 Mich. 176. The duty of draining the streets, &c., of a city, although not a judicial one, 'is of a judicial nature, requiring the exercise of qualities of deliberation and judgment. Mills ■/. Brooklyn, 32 N. Y. 489. Judicial admissions, or confessions. Admissions or confessions publicly made and noted in court, which appear by the record of proceedings in court. Judicial authority. The power ap- propriate to a judge; jurisdiction; the official right to hear and determine questions in controversy. There is a wide distinction between a special authority to act under particular circumstances, and. a judicial authority to act in particular cases. So long, in either case, as the party acts within the limits of his autliority, he is, of course, justified in what he does, and in either case, if he plainly exceed the limits of his authority, he is without justification; the material difference is this, that in the former case, i.e. where he has a mere authority to exe- cute, it is open to inquiry whether facts ex- isted which warranted his act ; in the latter, where he acts judicially in a matter within his jurisdiction, his adjudication is usually conclusive upon the question, whether the particular facts warranted that judgment, and to protect him from an action of tres- pass. 3 Stark. Evid. 1150 q. Judicial committee of the privy council. A tribunal in England, com- posed of members of the privy council, which advises her majesty upon any mat- ters referred to it; and formerly had ex- tensive appellate jurisdiction; but this seems mostly abrogated by the judica- ture acts. The judicial committee of the privy coun- cil, as constituted by Stat. 3 & 4 Wm. IV. ch. 41, passed in 1833, and 14 & 15 Vict. ch. 83, § 15, passed in 1851, consists of the lord JUDICIAL 669 JUDICIAL president of the council, the lord chancellor, the lords justices of appeal, and such other inembers of the privy council as shall hold, or have held, certain judicial or other offices enumerated in the acts, or shall be specially appointed by the crown to serve on the committee. Moreover, by Stat. 34 & 35 Vict. ch. 91, passed in the year 1871, her majesty was enabled to appoint, by warrant under her sign manual, four paid additional judges to act as members of the judicial committee, and to hold office during good behavior. (2 Steph. Com. iGl.) To the judicial committee have been re- ferred all appeals to the crown from admi- ralty and ecclesiastical courts ; from courts in her majesty's colonies and dependencies, and petitions for the prolongation of pat- ents. But by the judicature acts (g. v.), provision has been made for the transfer of the appellate jurisdiction of the judicial committee to the new supreme court of judicature. Mozley §• W. Judicial decision. The determina- tion of a court or judge, in a cause. A contract to repay money if an instru- ment is held void by judicial decision, does not contemplate a postponement of payment till a decision of the court of last resort is had. Wadsworth ». Green, 1 Sandf. 78. Judicial discretion. That limited power understood to be confided to a judge to decide, upon his own judgment, various collateral or minor matters. It is not an arbitrary authority to make orders as he pleases ; but, within narrow limits, questions are confided, to be de- cided as he thinks right, without review. Judicial discretion means a discretion, to be exercised in discerning the course pre- scribed by law. Tripp v. Cook, 26 Wend. 143. Judicial documents. Written in- struments relating to litigation. They are such as judgments, decrees, and verdicts; depositions, examinations, and inquisitions taken in the course of a legal process; writs, warrants, pleadings, bills, and answers, &o., in- cident to judicial proceedings. Judicial officer. A person in whom is vested authority to decide causes or exercise powers appropriate to a court. The term includes judges and aU offi- cers of like authority, functions, and powers. A sheriff is not a judicial officer, and the offices of sheriff and of tax-collector, although distinct under the constitution, may still be united in the same hands. Attorney-General v. Squires, 14 Ccd. 12. Judicial povsrer. That branch of the powers of government which relates to the deciding of controversies and admin- istration of justice, as distinguished from executive power {q. v.') and legis- lative power (5. w.). Judicial proceedings. A general term for proceedings in courts; for the course authorized to be taken in various cases to secure the determination of a controversy; to obtain the enforcement of a right or the redress or prevention of a wrong. A statute authorizing amendment of misnomers in writs, petitions, bills, or other judicial proceedings, includes misnomer in making out an appeal. Chappel v. Smith, 17 Ga. 68. Judicial sale. A sale which takes place under the order and auspices of a court, and the result of proceedings taken to enforce a right of sale, as distin- guished from a sale by an owner in virtue of his right of property. A judicial sale is one made under the process of a court having competent au- thority to order it, by an officer duly ap- pointed and commissionsd to sell. William- son V. Berry, 8 How. 495. Judicial sale includes a foreclosure by notice and sale. Sturdevant v. Norris, 30 Iowa, 65. Judicial separation. A separation of man and wife by decree of court, less complete than an absolute divorce ; other- wise called a limited divorce. By Eng- lish law, it has the effect, so long as it lasts, of making the wife a single woman for all legal pui-poses, except that she cannot marry again; and similarly the husband, though separated from his wife, is not by a judicial separation empowered to marry again. It thus corresponds somewhat to a divorce a mensa et thoro under the old law, t>ut is more complete in its effects. The' law of New York is substantially the same. These limited divorces are there granted for causes less grave than adultery, — for cruelty, deser- tion, &c. Judicial statistics. Statistics, published by authority, of the civil and criminal busi- ness of the United Kingdom, and matters appertaining thereto. Annual reports are published separately for England and Wales, for Ireland, and for Scotland. The statistics for England and Wales contain statements of tlie police establishments and expenses, and the number of offences com- mitted and offenders apprehended; state- ments of the number of inquests held by coroners; of the number of persons com- JUDICIARY 670 JURA mitted for trial at assises and sessions, with the result of the proceedings ; of the state of prisons, with returns of reformatory and industrial schools, and of criminal lunatics ; of the causes in the superior courts of com- mon law and equity, &c., and the county courts; also of the appeals to the privy council, and the judicial proceeding of the house of lords. The same matters, though with some difference in the arrangement, form the bulk of the report for Ireland. Kindred matters are dealt with in the report for Scotland, though here there is a wider divergence, rendered necessary by the varia- tion between the laws of Scotland and Eng- land. Mo-ley Sr Un- judicial writ. In English practice, the capias and all other writs subsequent to the original writ not issuing out of chancery, but from the court to which the original was returnable. Being grounded on what has passed in that court in consequence of the sheriff's return, they are called judicial writs, in contradistinction to the writs is- sued out of chancery, which were called original writs. 3 Bl. Com. 282. Judicial writs are such writs as issue under the private seal of the courts, and not under the great seal of England, and are tested or witnessed not in the king's name, but in the name of the chief judge of the court out of which they issue. In this phrase the word judicial is used in con- tradistinction to original ; original writs signifying such as issue out of chancery under the great seal, and are witnessed in the king's name. Since the uniformity of process act (2 Wm. IV. ch. 39, § 31), the distinction has become almost useless. JUDICIARY. The body of officers charged vpith the administration of jus- tice; the judges taken collectively. JUDICIUM. This Latin word is used in several senses in old English law; for judicial authority or jurisdiction, in the abstract; for a court or tribunal; for a judicial hearing, investigation, or other proceeding; and sometimes in the sense of verdict or judgment. Judicium Dei. The judgment of God. The decision in a trial by ordeal; 80 named because the deity was believed to decide in favor of the innocent. Judicium a non sue judlce datum nuUius est momeati. A judgment given by an improper judge is of no moment. Judicium eat quasi juris dictum. Judgment is, as it wei-e, a dictum of law. Judicium non debet esse lUuso- rium; suum affectum habere debet. A judgment ought not to be illusory ; it ought to have its consequence. Judicium parium. The judgment of one's peers, particularly trial by jury. Judicium redditur in invitujn, in prsesumptione legis. Judgment, in presumption of law, is given against an unwilling party. Judicium semper pro veritate ao- cipitur. Judgment is always taken for truth. Judicia in curia regis non annihi- lentur, sed stent in robore suo quous- que per errorem aut attinctum ad- nullentur. Judgments in the king's court are not annihilated, but remain in force until annulled by error or attaint. Judicia in deliberationibus crebro maturescunt, in accelerate processu nunquam^. Judgments become fre- quently matured by deliberations, never by hurried process. Judicia posteriora sunt in lege for- tiora. The latter decisions are the stronger in lav?. Judicia sunt tanquam juris dicta, et pro veritate accipiuntur. Judg- ments are, as it were, the dicta of the law, and are received as truth. Judiciis posterioribus fides est ad- hibenda. Credit is to be given to the latter decisions. JUGE. In French law, a judge. Juges d'instruotion, are officers subject to the procureur-impidal, who receive, in cases of criminal ofiences, the complaints of the parties injured, and who summon and examine witnesses upon oath, and, after communication with the procureur-imperial, draw up the forms of accusation. They have also the right, subject to the approval of the same superior officer, to admit the accused to bail. They are appointed for three years, but are re-eligible for a further period of office. They are usually chosen from among the regular judges. Brown. Juge de pais. An inferior judicial functionary, appointed to decide summarily controversies of minor importance, espe- cially such as turn mainly on questions of fact. He has also the functions of a police magistrate. Ferriere. JURA. Rights; the plural oijus, q. v. Jura ecolesiastica limitata sunt infra limites separates. Ecclesiastical laws are limited within separate bounds. Jura eodem modo destruuntur quo constituuntar. Lavps are abrogated by the same means by which they were made. Jura naturae sunt immutabilia. The laws of nature are unchangeable. JURAMENTUM 671 JURISDICTION Jura persoiiaTum. The rights of per- sons. Jura publica anteferenda privatis. Public rights are to be preferred to private. Jura publioa ex private promiacue decidi non debent. Public rights ought not to be promiscuously decided out of a private transaction. Jura regalia. Royal rights, or rights in the nature of royal rights; especially civil and criminal jurisdiction. Jura regis speoialia non concedun- tur per generalia verba. The special rights of the king are not affected by general words. Jura rerum. The rights which a per- son may acquire in things. Jura sanguinis nuUo jure civill di- rimi possunt. The rights of blood can be taken away by no civil law. Jura gumma imperii. The supreme rights of dominion. JURAMENTUM. An oath. Juramentum calumniEe. The oath of calumny. An oath required, in the civil and canon law, of the parties to a suit, their attorneys and proctors, that they are not influenced by malice, but believe their cause to be just. See Ante JUKAMENTUM. JURAT. An abbreviation of the Latin juralum, signifying sworn, the emphatic word in the Latin form of the memorandum or clause in an affi- davit by which the officer certifies that it was " sworn " before him ; from which such a clause or a like clause in any affidavit or deposition is called the jurat. JURAT A, was formerly the conclusion of every nisi prius record, which stated in effect that the proceedings were respited till some day therein named, unless the judge who was to try the cause should be- fore that day come (as he always did) to the place appointed for the trial ; now abolished. Smith. Act. Law, ch. 4. JURATS. 1. Twelve officers in the island of Jersey, members of the royal court, and also members of the states or legislative assembly of the island; elected for life by the whole of the ratepayers throughout the island. Cowel; 1 Bl. Com. 107 ; 1 Steph. Com. 101. 2. Also, officers in the nature of alder- men, in certain towns of Kent and Sussex. Coivd. Juris et de jure. Of right and by law. This term is applied to presump- tions which are conclusive, and cannot be rebutted by evidence; as distin- guished from presumptions juris, which may be rebutted. JURISCONSULT. A jurist ; a per- son skilled in the science of law, par- ticularly of international or public law. JURISDICTION. 1. The authority of government ; the sway of a sovereign power. 2. The authority of a court as dis- tinguished from the other departments ; judicial power considered with reference to its scope and extent as respects the questions and persons Subject to it; power given by law to hear and decide controversies. The separation of the legislative, judicial and executive powers of government is essential to a republican form of govern- ment, and cannot be violated even by a constitutional convention, and therefore tho ordinance of April 29, 1868, by the Missis sippi constitutional convention of that year, granting new trials upon certain classes of final judgments and decrees referred to, and on certain conditions therein named, not being a legislative, but a judicial act, is unconstitutional and void. Lawson v. Jef- fries, 47 Miss. 686. The determination of the result of an election is not a matter pertaining to the ordinary jurisdiction of the law in courts of justice ; it is in the nature of a political question, to be regulated under the consti- tution by the political authority of the state ; not by the judicial. Rogers v. Johns, 42 Tex. 339. Courts have no power to promulgate laws or to authorize others to do so. If viola- tion or remissness of official duty has oc- curred among those who arc by the consti- tution authorized to enact and promulgate laws, the correction is to be sought with- in the powers of the legislative and exec- utive departments, and not within those of the judicial. State v. Deslonde, 27 La. Ann. 71. Jurisdiction is the power to hear and determine the subject-matter in contro- versy between parties to the suit; to ad- judicate or exercise any judicial power over them. Rhode Island v. Massachusetts, 12 Pet 657, 717. The power to hear and determine a cause is jurisdiction. United States v. Arredondo, 6 Pet. 691 ; Hickman v. O'Neal, 10 Col. 292. Jurisdiction is the power to hear and de- termine a cause ; the authority by which judicial officers take cognizance of and de- cide causes. Brownsville u. Basse, 43 Tex. 440. Jurisdiction includes the power to hear without determining, or to determine with- out hearing. Exp. Bennett, 44 Cal. 84. The word jurisdiction (jus dicere) is a JUROR 672 JURY term of large and comprehensive import, and embraces every kind of judicial action upon the subject-matter, from finding the indictment to pronouncing the sentence. When the jurisdiction of the oflEence, with its penalties fixed by law, is transferred from one tribunal to another, it carries with it the power to inflict such punishment, to the same extent to which it was held by the court from which it was transferred. To have jurisdiction is to have power to in- quire into the fact, to apply the law, and to declare the punishment, in a regular course of judicial proceeding. Hopkins v. Com- monwealth, 3 Melc. (Mass.) 460. The term jurisdiction, in the extradition treaties between the United States and for- eign countries, has a broader meaning than that of mere physical territorial jurisdiction, or even of quasi territorial jurisdiction, or treaty jurisdiction. It has an enlarged mean- ing, equivalent to the words " authority, cog- nizance, or power of the courts." Re Vogt, 18 Int. Rev. Rec. 18. JUROR. 1. One member of a jury. 2. Sometimes one who takes an oath, as in the term non-juror, — a person who refuses certain oaths JURY. A body of men summoned and sworn to decide the facts of a con- troversy on trial ; that branch of a court ■which is charged with the determination of the facts. The terms "jury" and "trial by jury" as used in the constitution, mean 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 oflicers free from all bias in favor of or against either party, duly im- panelled and sworn to render a true verdict according to the law and the evidence. State i>. McClear, 11 Nev. 39. Juries are either special or common. Special juries were introduced for causes of too great nicety for the discussion of ordinary freeholders. The officer is to take indiffer- ently forty-eight of the principal freeholders in the presence of , the attorneys of both sides, each of whom is to strike off twelve, and the remaining twenty-four are returned. A common jury is formed by the first chosen twelve of a panel. 3 Bt. Com. 857. The words trial by jury, in the state con- stitutions, mean a jury of twelve men. People V. Kennedy, 2 Parh Cr. 312 ; May V. Milwaukee, &c. R. E. Co., 3 Wis. 219. The word jury, in the provision of the constitution of Minnesota securing the right to trial by jury, imports a body of twelve men, and a trial by a less number in a crim- inal prosecution, against the objection of the accused, and notwithstanding he has the right, upon entering into a recogniz- ance with surety, to appeal to another court, is a deprivation of and a violation of his constitutional rights. State v. Everett, 14 Minn. 439. Jury, as used in N. Y. Const, of 1846, art. 1, § 7, means a body of men having the usual characteristics, and acting through the accustomed forms by which the powers of a jury are exercised. Clark o. City of Utica, 18 Barh. 451. It imports a body of twelve men, whose verdict is to be unanimous. Cruger v. Hud- son Riv^r R. R. Co., 12 N. Y. 190; People V. Kennedy, 2 Park. Cr. 312. The word jury, as used in the New York constitution, does not mean a jury of twelve men exclusively. A jury of six men in a justice's court is as much a jury, in the eye of the law, as a jury of twelve men in a court of record; and is the jury which had been " heretofore used " in that tribunal at the adoption of the constitution. Knight u. Campbell, 62 Barh. 16. Jury, in the constitution, means a tribu- nal of twelve men presided over by a court, and hearing the allegations, evidence, and arguments of the parties. Lamb v. Lane, 4 Ohio St. 167. Twelve men are necessary to constitute a jury. Jackson v. State, 6 Blackf. 461 ; Brown v. State, 8 Id. 561 ; Durham v. Hud- son, 4 Jnd. 501 ; Brown v. State, 16 Id. 496. A jury must be composed of twelve men, according to the meaning of the term in the common law. United States v. Insur- gents of Pennsylvania, 2 Dall. 335 ; Bona- parte V. Camden & Amboy R. R. Co., Baldw. 205; Wyneharaer v. People, 13 N. Y. 378, 427, 458, 484; Baxter u. Putney, 37 Bow. Pr. 140. Jury means a panel of twelve men, un- less a different number is designated in the statute. Bibel v. People, 67 ill. 172. The term jury does not necessarily im- ply twelve men. There are statutes, as in the case of coroners' inquests, and some others, which provide for a jury to consist of less than twelve persons. Fitchburg R. R. Co. ». Boston & Maine R. R., 3 Cush. 58. A jury is a certain number of men (usu- ally twelve) to whose decision the matter in dispute between a plaintiff and defend- ant is submitted, and who are bound upon their oaths to decide (or give their verdict) according to the evidence which is laid be- fore them on the trial of the cause. Such men, individually, are called jurors. A jury is either a common jury or a special jury. A common jury consists of persons between the ages of twenty-one and sixty, who shall have £10 a year, beyond reprises, in lands and tenements of freehold, copyhold, or customary tenure, or held in ancient de- mesne, or in rents issuing out of such tene- ments in fee-simple, fee-tail, or for life, or £20 a year in leaseholds held for twenty- one years or any longer term, or any term determinable on a life or lives ; or, being a householder, shall be rated to the poor-rate, or, in Middlesex, to the house duty, in a value of not less than £30; or who shall occupy a house containing not less than JURYMAN 673 JUS fifteen windows. These quaJiflcations, how- ever, do not extend to jurors of any liber- ties, franchises, cities, or boroughs who pos- sess civil or criminal jurisdiction. It is called a common jury, because the matter to be tried by it is only of a common or or- dinary nature. A special jury consists of persons of the degree of squire or upwards, or of the quality of banker, or merchant, &c. It is called special, because the matter to be tried by it is usually of a special and important nature, and is supposed to re- quire men of education and intelligence to understand it. See also jury act 1870, 33 & 34 Vict. ch. 77. Broum. Jury signifies twenty-four or twelve men sworn to inquire of a matter of fact, and to declare the truth upon such evidence as shall be delivered them. Juries are of two kinds : grand juries, to inquire whether there is a prima facie ground for a criminal accusation ; and petty juries, for determin- ing disputed matters of fact in civil and criminal cases. Mozley ^ W. Jury process. The process by which a jury is summoned in a cause, and by which their attendance is enforced. JURYMAN. One member of a jury; a juror. JUS. Right; justice; law. An ab- stract right. In the civil law, jus generally means law, as distinguished from lex^ a statute. By modei-n writers the word has been used to designate a right which may be enforced by the law ; usually with some qualifying word or phrase annexed, describing the particu- lar right or class of rights intended. Jus aoorescendi. The right of sur- vivorship. The right of the survivor or survivors of two or more joint tenants to the tenancy or estate, upon the death of one or more of the joint tenants, the last survivor taking an estate of inheritance. This is an incident of estates held jointly, but does not extend to partner- ship property. Jus accrescendi inter meroatores, pro beneficio commercii, locum non habet. For the benefit of commerce, the right of survivorship has no place among merchants. There is no right of survivorship among merchants in mer- cantile transactions. Particularly among the members of a mercantile partner- ship, the right of survivorship is not allowed ; although tbey hold jointly the property of the firm, the share of each partner goes, upon his decease, to his personal representatives, like any other part of his estate. This maxim extends VOL. 1. 43 to real as well as personal property; so that all property, of whatever nature, purchased with partnership capital for the purposes of the partnership, con- tinues to be partnership capital, and is not subject to the jus accrescendi. The right of action or legal interest in the debts and other choses in action of the partnership, however, survives to a sur- viving partner, but only for the joint benefit of himself and the representar tives of his deceased partner; he has no power to dispose of the partnership efflects as against such representatives except for the purpose of paying partner- ship debts and liabilities. Whart. Leg. Max. 90. Jus accrescendi praefertur oneribus. The right of survivorship is preferred to burdens. One joint proprietor cannot incumber the joint estate so as in any way to aifect the right of another joint proprietor who survives him. Thus if one joint tenant grants a right of way over or makes any charge upon the joint estate, although it may be good as against himself, it does not, if he dies before the other joint tenailt, affect the latter's right of survivorship. Within the principle of this maxim, also, is the rule that no dower or curtesy can be claimed out of a joint estate. A similar principle is sometimes expressed in the words jus accrescendi prmfertur ultimai voluntati, — the right of survivorship is preferred to a last wiU; which rule ap- plies to an attempt by a joint tenant to effect by a testamentary provision what the maxim first mentioned prohibits his effecting by act or deed during his life- time. Hence a devise by a joint tenant of his share of the joint estate is without effect; the right of the survivor, which accrued at the original creation of the estate, is prior to and has preference over the devise, which only takes effect after the death of the testator. Jus ad rem. A right to a thing. A term of the civil law, signifying a right to a thing arising out of an obligation incurred by a particular person, and which may be enforced against or through him, as distinguished from a right in some particular article or piece of property, having effect against every person, which is termed jus in re. A JUS 674 JUS right of property consisting in action or obligation may be jus ad rem ; property in possession or dominion is jus in re. A right of action, when considered with regard to the person from whom it is due, is called obligation; when con- sidered with regard to the person to whom it is due, it is called jus ad rem. The jus ad rem belongs to a person only mediately and from relation to some par- ticular individual ; the jus in re belongs to a person immediately and absolutely, and is the same right as against all others. Various distinctions between the two classes of rights have been drawn, based upon the title to, or the possession or right of possession of, the thing in question ; but these seem not to be essential points of distinction. Jus ad rem is employed by modern writers to denote a right to a thing, without the possession, or which is an imperfect or incomplete right in any respect. Jus in re is used, in like man- ner, of a complete fight as distinguished from an imperfect right; it includes both right and possession. Thus a lien accompanied with possession is jus in re; a lien resting whoUy in contract is jus ad rem. Jus civile. Civil law. The body of law peculiar to one state or people. Particularly, in Roman law, the civil law of the Roman people, as distin- guished from the_/«s gentium. The term is also applied to the body of law called emphatically the civil law. The jus civile and the jus gentium are dis- tinguished in this way. All people ruled by statutes and customs use a law partly peculiar to themselves, partly common to all men. The law each people has settled for itself is peculiar to the state itself, and is called jus civile, as being peculiar to that very state. The law, again, that natural reason has settled among all men, the law that is guarded among all peoples quite alike, is called the_;M«jeiife'um, and all nations use it as it law. The Roman people, there- fore, use a law that is partly peculiar to itself, partly common to all men. Hunter, Roman Law, xxxviii. But this is not the only, or even the gen- eral, use of the words. What the Roman jurists had chiefly in view, when they spoke of ./MS dmle, was not local as opposed to cos- mopolitan law, but the old law of the city as contrasted with the newer law introduced by the praetor {jus prcetarium,jus honorarium). Largely, no doubt, the jus gentium corre- sponds with the jus prcetorium ; but the cor- respondence is not perfect. Id.xxxix. Jus commune. Common right. Nat- ural justice. Jua dare. To give the law; to make law. This is the province of the legis- lature, as distinguished from that of the judge, which is to declare the law, — jus dicere. Jus dicere. To declare the law. Dis- tinguished from /us dare, q. v. Jus disponeudi. The right of dis- posing of a thing. One of the qualities of ownership. Thus, the surviving mem- ber of a partnership has no jus disponendi of the partnership property as against the personal representatives of a de- ceased partner, except for the purpose of discharging partnership liabilities. Jus ex injuria non oritur. A right does not arise out of, or from, a wrong. A person cannot recover for an injury occasioned to, or damages suffered by, him, owing to his own wrongful act. Jus et fraus nuuquam cohabitant. Right and fraud never dwell together. This maxim is applicable to those cases where a wrong or forgery is attempted to be committed under color of right. Jus gentium. The law of nations; universal law. In Roman law, this term included not only the law govern- ing the relations of nations with each other, sometimes termed international law, but also the law generally obsei-ved by all nations, and which is established by natural reason among all men. Jus honorarium. The honorary law. The name of a body of law compiled from the edicts of the Roman praetors and sediles, of an equitable and reme- dial nature. See Jus prcetorium. Jus in re. A right in a thing. A term of the civil law, signifying a right in respect to a thing inherent in the per- son's relation to the thing, without ref- erence to any other particular person, and which is the same as against all others. As to the distinction between jus in re and jus ad rem, see the latter term. Jus legitimum. A legal right. In the civil law, a right which might be en- forced in the ordinary course of law. Jus mariti. The right of a husband. Particularly the right to the movable JUS 675 JUS property of his wife which a husband acquires by virtue of the marriage. Jus naturals. Natural law; the law of nature. This name was given by the Romans to the rules or principles which they regarded as taught by nature, to all men; and not peculiar to men, but applying to all living things. But the jus gentium — the general or univer- sal element of law — was also identified with they«s natwrale. Jus personarum. Rights of persons. In the civil law, those rights which be- long to persons as such, or in their dif- ferent characters and relations ; as parents and children, masters and ser- vants, &c. Ju3 possessionis. The right of pos- sessioij. Jus postliminii. The right to reclaim property after recapture. The right of postliminy, q. v. Jus prsetorium. The praetorian law. In the civil law, this term denotes that system of equitable and remedial law introduced by the prsetors, within their discretion ; termed also jus honorarium. Jus precarium. A precarious right. See Pjrbcakium. Jus privatum. Private law. In Ro- man law, the law regulating the affairs of individuals was termed jus privatum ; and was distinguished from the jus pub- licum, which term denoted the law regu- lating the affairs of the state. The jus privatum was gathered from and included the precepts of the jus naturale, the jus gentium, and the jus civile, q. v. Jus proprietatis. The right of prop- erty. Proprietorship as distinguished from the jus possessionis. Jus publicum. Public law. In Ro- man law, the law regarding the state. The jus publicum is what looks to the standing of the affairs of Rome ; jus pri- vatum, to the advantage of individuals, ./us publicum is also said to be the law relating to sacred rites, to priests and magistrates. The distinction that seems to be intended may be expressed with more precision from a different stand-point Two kinds of cases come before legal tribunals. In one, pri- vate individuals seek redress from private Individuals for evils affecting themselves; in the other, persons sue or are sued, not in their own behalf, but as representing the state or sovereign. Causes are thus either, 1, between private individuals ; or, 2, be- tween the sovereign and private individuals. Public law, therefore, embraces ecclesi- astical law, constitutional law (including the administration), and criminal law. Hunter, Roman Law, xxxvii. Jus relictae. Right of a widow. The right of a widow to a certain share of her deceased husband's estate. Jus rerum. The law of things. The law regulating the rights and powers of persons over things ; how property is ac- quired, enjoyed, and transferred. Jus respicit aequitatem. The law has regard to equity. In the broadest sense of the terms, law is founded upon equity, and regard is had to equity in all legal decisions. But as to the two systems of jurisprudence, distinguished by the terms " law " and " equity," the general relation between them is ex- pressed by the maxim aquitas sequitur legem, q. v. When the law is clear, it must be applied, although the result may appear to be inequitable in a par- ticular case ; law does not give place to equity, or what may seem to be so. Nevertheless, the courts of law regard the established principles acted upon in courts of equity. Thus, where a rule of property is settled in a court of equity, and is not repugnant to any legal prin- ciple, rule, or determination, it may properly be adopted at law. And courts of law will inquire of decisions in courts of equity, not upon questions merely equitable, but for legal judgments pro- ceeding upon legal grounds. Smith v. Doe, 7 Price, 379 ; Bro